Kaiser Aluminum & Chemical Corporation Brief for Petitioner
Public Court Documents
October 2, 1978
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O ctober T e r m , 1 9 7 8
N o. 78-435
K a ise r A l u m in u m & C h e m ic a l Corporation ,
Petitioner,
v.
B r ia n E . W eber , Respondent.
BRIEF FOR PETITIONER
T h o m p so n P ow ers
J a n e M cG r ew
STEPTOE & JOHNSON
1250 Connecticut Avenue, K W .
Washington, D.C. 20036
Of Counsel:
R obert J . A l l e n
K a iser A l u m in u m & C h e m ic a l
Corporation
300 Lakeside Drive
Oakland, California 94643
TABLE OF CONTENTS
O p in io n s B e l o w .................................................................................. 1
J u risd ic tio n .......................................................................................... 2
S ta tu tes I nvolved ........................................................................... 2
Q u e st io n P r e s e n t e d .......................... 2
S t a t e m e n t of t h e C a s e ................................................................. 2
S u m m a ry of A r g u m e n t ........................ 9
A r g u m e n t ................ 13
I. T it l e VII P e r m it s A n E m plo y er and U n io n
W it h o u t P roof Or A d m issio n of L ia b ility T o
A dopt V o lu n ta r ily A P rogram T h a t P rovides
C raft J obs T o E m plo y ees of A Class P reviously
E xcluded By I d e n t ifie d D is c r im in a t io n ............... 13
A. T it l e VII H as B e e n C o nstrued T o S p u r E m
ployers and U n io n s T o T a k e R ace C onscious
A ctio n T o Overcom e T h e E f f e c t s of P ast
D is c r im in a t io n ................................................................. 13
B . V o lu n ta ry A ctio n I s V ita l T o T h e I m p l e
m e n t a t io n of T it l e VII and O t h e r F ederal
L aw s I n ten d ed To A c h ie v e E qual E m plo y
m e n t O pp o r t u n it y ............................... 23
C. V oluntary R ace C onscious A ctio n I s L a w fu l
U nder T it l e V I I ............................................. 27
1. Employers And Unions May Voluntarily
Take Race Conscious Action To Remedy
Identified Discrimination Without A Prior
Finding Or Admission Of Their Liability . 30
Page
11 Table of Contents Continued
Page
2. Race Conscious Action Need Not Be Limi
ted To Restoring Victims Of Past Discrim
ination To Their Rightful P laces............. 39
II . T h e T r a in in g P rogram A dopted B y K aiser and
T h e S teelw o r k er s M e e t s T h e A ppr o pr ia te
S tandards F or J u dging T h e L a w f u l n e s s of V ol
u n ta r y A ffir m a t iv e A c t i o n ........................ .................. 44
A. T h e C o m pa n y and U n io n R easonably D ecided
To A dopt A R ace C onscious R em edy U n der
T h e C ir c u m sta n c es of T h is Ca s e ..................... 46
1. The Existence Of Identified Discrimination
Was Established ............................... 46
2. The Threat Of Legal Compulsion Was
Present ........ 49
B. T h e T r a in in g P rogram A dopted By T h e C om
p a n y and T h e U n io n P rovided A R easonable,
R em edy ...................................... 51
1. There Is A Direct Relationship Between
The Remedy And The Problem................ 51
2. Due Consideration Was Given To The In
terests Of White W orkers........................ 55
a. Kaiser And The Steelworkers Used
Their Best Judgment To Reconcile
Competing In terests............................. 55
b. The Program Did Not Abrogate The
Rights Or Expectations Of Incumbents 58
C. S u m m a ry ............................................................................. 60
C o n c l u s io n ............................................................................ 61
E x h ib it A ....................................................................... l e
Cases : Page
Abood v. Detroit Board of Education, 431 U.S. 209
(1977) ..................................................................... 57
Acha v. Beame, 570 F.2d 57 (2d Cir. 1978) ............... 18
Acha v. Beame, 531 F.2d 648 (2d Cir. 1976)...... 38
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .16,19,
22, 40
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . .13,
23 28 56 57
Alexander v. Louisiana, 405 U.S. 625 (1972)__ ’47
Allen v. City of Mobile, 18 Fair Empl. Prac. Cas. 217
(S.I). Ala. 1978) ........................................... 17
Alvarez-Ugarte v. City of New York, 391 F. Supp.
1223 (S.D.N.Y. 1975) ......................... ................ .. 14
Associated General Contractors, Inc. v. Altshuler, 490
F.2d 9 (1st Cir. 1973), cert, denied, 416 U.S. 957
(1974) .................. 34,41,48,49
Association Against Discrimination in Employment v.
City of Bridgeport, 454 F. Supp. 751 (D. Conn.
1978) ...................................................... . ............17,31
Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th
Cir.), cert, denied, 404 U.S. 939 (1971) ................ 7
Beazer v. New York City Transit Authority, 414 F.
Supp. 277 (S.D.N.Y. 1976), modified in part and
aff’d in part on other grounds, 558 F.2d 97 (2d
Cir. 1977), cert, granted,-----U .S.------ , 98 S. Ct.
3121 (1978) ............................................. ................ ]4
Board of Trustees v. Sweeney, ------ U.S. ----- , 99 S
_ Ct. 295 (1978) ............................................. .......... 26
Bridgeport Guardians, Inc. v. Bridgeport Civil Service
Commission, 482 F.2d 1333 (2d Cir. 1973), cert.
denied, 421 U.S. 991 (1975) .................................. 59
Brown Transport Corp. v. Atcon, 47 U.S.L.W. 3387
(Dec. 5, 1978) (No. 77-1581) ................................ 26
Buckner v. Goodyear Tire & Rubber Co., 339 F. Supp.
1108 (N.D. Ala. 1972), aff’d per curiam, 476 F.2d
1287 (5th Cir. 1973) ............................. .......... 28
Califano v. Goldfarb, 430 U.S. 199 (1977).............. 51
Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) (en
banc), cert, denied, 406 U.S. 950 (1972) . .40, 47, 49, 50
Chance v. Board of Examiners, 534 F.2d 993 (2d Cir.
1976), cert, denied sub nom. Council of Supervi
sors v. Chance, 431 U.S. 965 (1977) ......................
TABLE OF AUTHORITIES iii
51
IV Table of Authorities Continued
Page
Chrapliwy v. Uniroyal, Inc., 15 Fair Empl. Prac. Oas.
822 (N.D. Ind. 1977) .................. ..................... . . 18
Connell Construction Co. v. Plumbers Local 100, 421
U.S. 616 (1975) ...................................................... 57
Contractors Association v. Secretary of Labor, 442
F.2d 159 (3d Cir.), cert, denied, 404 U.S. 854
(1971) ..................................................................passim
Cox v. Babcock & Wilcox Co., 471 F.2d 13 (4th Cir.
2972) ......... ........... . .................... . 7
Crockett v. Green, 534 F.2d 71.5'(7th Cir.’ 1976)'.’.'.'.’.’ . 40, 60
Crockett v. Green, 388 F. Supp. 912 (E.D. Wis. 1975) . 14
Crown Zellerbach Corp. v. Wirtz, 281 F. Supp. 337
(DJD.C. 1968) .......................................................... 20
Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th
Cir. 1970) . ............................................ 23
Davis v. County of Los Angeles, 566 F.2d 1334 (9th
Cir. 1977), cert, granted, 46 U.S.L.W. 3780 (June
20, 1978) (No. 77-1553) .........................................39,41
Dent v. St. Louis-San Francisco Railway, 406 F.2d 399
(5th Cir. 1969), cert, denied, 403 U.S. 912 (1970) 23
Detroit Police Officers Association v. Young, 446 F.
Supp, 979 (E.D. Mich. 1978) ................................50,59
Dickerson v. United States Steel Corp., 17 Empl. Prac.
Dec. IF 8528 (E.D. Pa, 1978) .................................. 17
Donnell v. General Motors Corp., 576 F.2d 1292 (8th
Cir. 1978) ......................... 14
Dothard v. Rawlinson, 433 U.S. 321 (1977) ................ 15
Dozier v. Chupka, 395 F. Supp. 836 (S.D. Ohio 1975) . . 14
EEOC v. AT&T, 556 F.2d 167 (3d Cir. 1977), cert,
denied sub mom. Communications Workers of
America v. EEOC,----- U.S. ------ , 98 S. Ct, 3145
(1978) ................................................................. passim
EEOC v. AT&T, 419 F. Supp. 1022 (E.D. Pa. 1976),
aiff’d, 556 F.2d 167 (3d Cir. 1977), cert, denied sub
nom. Communications Workers of America, v.
EEOC,----- U.S.------ , 98 S. Ct. 3145 (1978) . .36, 37, 39
EEOC v. AT&T, 365 F. Supp. 1105 (E.D. Pa. 1973),
aff’d in part and rev’d and remanded in part, 506
F.2d 735 (3d Cir. 1974) .......................................... 21
EEOC v. Local 14, International Union of Operating
Engineers, 553 F.2d 251 (2d Cir. 1977) ................ 48
Table of Authorities Continued v
Page
EEOC v. Local 638, 532 F.2d 821 (2d Cir. 1976) . . . .48, 49
Emporium Capwell Co. v. Western Addition Commu
nity Organization, 420 U.S. 50 (1975) ...........55, 56, 57
Erie Human Relations Commission v. Tullio, 493 F.2d
371 (3d Cir. 1974) .............................. ................. 60
Florida Trailer & Equipment Co. v. Deal, 284 F.2d 567
(5th Cir. 1960) ....................................................... 38
Ford Motor Co. v. Huffman, 345 U.S. 330 (1953) . .45, 57, 58
Franks v. Bowman Transportation Co., 424 U.S. 747
Freeman v. Motor Convoy, Inc., 409 F. Supp. 1100
(N.D. Ga. 1976) ............................... ...................... 14
Furnco Construction Corp. v. W aters,----- U .S.------ ,
98 S. Ct. 2943 (1978) ............................................ 24,29
Green v. County School Board, 391 U.S. 430 (1968) . . 30
Gregory v. Litton Systems, Inc., 472 F.2d 631 (9th
Cir. 1972) ............................................................... 14
Griggs v. Duke Power Co., 401 U.S. 424 (1971) . .13,15,16,
17, 40
Hazelwood School District v. United States, 433 U.S.
299 (1977) ......................................................... 15,16,50
Humphrey v. Moore, 375 U.S. 335 (1964) ................ 46,56
Hutchings v. United States Industries, Inc., 428 F.2d
303 (5th Cir. 1970) ................................................. 23
International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977) .................. passim
J. I. Case Co. v. NLRB, 321 U.S. 332 (1944) ............. 56
James v. Stockham Valves & Fittings Co., 559 F.2d 310
(5th Cir. 1977), cert, denied, 434 U.S. 1034 (1978) 18
Jersey Central Power & Light Co. v. Local 327, IBEW,
508 F.2d 687 (3d Cir. 1975), vacated and remanded
sub nom. EEOC v. Jersey Central Power & Light
Co., 425 U.S. 987 (1976)....... ................................. 22
Johnson v. Pike Corp. of America, 332 F. Supp. 490
(C.D. Cal. 1971) .................................................... 14
Joyce v. McCrane, 320 F. Supp. 1284 (D.N.J. 1970) . .48, 49
Kirkland v. New York State Department of Correc
tional Services, 520 F.2d 420 (2d Cir. 1975), cert.
denied, 429 U.S. 823 (1976) .................. 59
Lau v. Nichols, 414 U.S. 563 (1974) ........................... 30
Lemon v. Kurtzman, 411 U.S. 192 (1973) .................... 62
VI Table of Authorities Continued
Page
Local 24, International Brotherhood of Teamsters v.
Oliver, 358 U.S. 283 (1959) . . ...............................56, 57
Local 53, International Association of Heat & Frost
Insulators v. Yogler, 407 F.2d 1047 (5th Gir.
1969) ................................ 40,43,48
Local 189, Amalgamated Meat Cutters v. Jewel Tea
Co., 381 U.8. 676 (1965) ...................................... 57
Local 189, Papermakers v. United States, 416 F.2d 980
(5th Cir. 1969), cert, denied, 397 U.S. 919 (1970) .17, 29
McAleer v. AT&T, 416 F. Supp. 435 (D.D.C. 1976) . . . . 21
McDaniel v. Barresi, 402 U.S. 39 (1971) . . . . . . . . . . . . 30
McDonald v. Santa Fe Trail Transportation Co., 427
U.S. 273 (1976) ...................................................... 20
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) ......... 13,15
Morrow v. Crisler, 491 F.2d 1053 (5th Cir.) (en banc),
cert, denied, 419 U.S. 895 (1974) ........................... 40
NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974) 40,42, 45, 60
Parson v. Kaiser Aluminum & Chemical Corp., 575
F.2d 1374 (5th Cir. 1978) ........................4, 50
Patterson v. American Tobacco Co., 586 F.2d 300 (4th
Cir. 1978) ........................_.................................... 18
Patterson v. Newspaper & Mail Deliverers, 514 F.2d
767 (2d Cir. 1975), cert, denied, 427 U.S. 911 (1976) 40
Pellieer v. Brotherhood of Railway & Steamship
Clerks, 217 F.2d 205 (5th Cir. 1954), cert, denied,
349 U.S. 912 (1955) ............ 56
Pettwav v. American Cast Iron Pipe Co., 576 F,2d 1157
(5th Cir. 1978) .................. 18
Quarles v. Phillip Morris, Inc., 279 F. Supp. 505 (E.D.
Va. 1968) ............................. 44
Regents of the University of California v. Bakke,-----
U .S.----- , 98 S. Ct. 2733 (1978) ........................passim
Rodriguez v. East Texas Motor Freight, 505 F.2d 40
(5th Cir. 1974), vacated on other grounds, 431 U.S.
395 (1977) ............................................ _............... 14
Sears v. Atchison, Topeka & Santa Fe Railway, 454
F. Supp. 158 (D. Kan. 1978) .............. ................. 18
Sims v. Sheet. Metal Workers Local 65, 489 F.2d 1023
(6th Cir. 1973) .................................................. .48,49
Sledge v. J.P. Stevens & Co., 585 F.2d 625 (4th Cir.
1978) ....................................................................... 45
Table of Authorities Continued vii
Page
Southbridge Plasties Division, W.R. Grace & Co. v.
Local 759, United Rubber Workers, 565 F.2d 913
(5th Cir. 1978) .....................................................21,22
Southern Illinois Builders Association v. Ogilvie, 471
F.2d 680 (7th Cir. 1972) ........................... 34, 41,48,49
Steele v. Louisville & Nashville Railroad, 323 U.S. 192
(1944) ..................................................................... 56
Stevenson v. International Paper Co., 516 F.2d 103
(5th Cir. 1975) ........................................................ 15
Swann v. Chariotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) ................................... 29,30
Swift & Co. v. United States, 276 U.S. 311 (1928) . . . 36
TWA v. Hardison, 432 U.S. 63 (1977) ................ 56,57,59
United Air Lines v. Evans, 431 U.S. 553 (1977) ......... 38
United Jewish Organizations, Inc. v. Carey, 430 U.S.
144 (1977) ........................................................... .30,43
United States v. Allegheny-Ludlum Industries, Inc., 6T
F.R.D. 1 (N.D. Ala. 1974), aff’d, 517 F.2d 826 (5th
Cir.), cert, denied, 425 U.S. 944 (1975) ............. 36,51
United States v. Building & Construction Trades Coun
cil, 271 F. Supp. 447 (E.D. Mo. 1966) .................. 21
United States v. Carpenters Local 169, 457 F.2d 210
(7th Cir.), cert, denied, 409 U.S. 851 (1972)....... 48
United States v. City of Chicago, 549 F.2d 415 (7th
Cir.), cert, denied sub nom. Arado v. United States,
434 U.S. 875 (1977) .............................................. 39,60
United States v. City of Chicago, 385 F. Supp. 543
(N.D. 111. 1974) ..................................................... 17
United States v. City of Philadelphia, 573 F.2d 802
(3d Cir. 1978), petition for cert, filed, 46 U.S.L.W.
3766 (U.S. June 13, 1978) (No. 77-1718) ............. 39
United States v. East Texas Motor Freight System,
Inc., 564 F.2d 179 (5th Cir. 1977) ......................... 18
United States v. Elevator Constructors Local 5, 538
F.2d 1012 (3d Cir. 1976) ....................40,43,44,48,60
United States v. IBEW Local 38, 428 F.2d 144 (6th
_ Cir.), cert, denied, 400 U.S. 943 (1970) ....... .. 44
United States v. Ironworkers Local 86, 443 F.2d 544
(9th Cir.), cert, denied, 404 U.S. 984 (1971) . .. .48,49
United States v. Local 357, IBEW, 356 F. Supp. 104
(D. Nev. 1973) ...................................................... 48
United States v. Masonry Contractors Association, 497
F.2d 871 (6th Cir. 1974) ...............................40,48,49
United States v. N.L. Industries, Inc., 479 F.2d 354
(8th Cir. 1973) (en banc) ............................. . 40
United States v. Plumbers Local 73, 314 F. Supp. 160
(S.D. Ind. 1969) ..................................................48,49
United States v. Plumbing Industry Local 24, 364 F.
_ Supp. 808 (D.N.J. 1973) ...............48, 49
United States v. Sheet Metal Workers Local 36, 416
F.2d 123 (8th Cir. 1969) ....................................... 43,48
United States v. Weber, 47 U.S.L.W. 3408 (1978) (No.
78-436) ................ 2
United States v. Wood Lathers Local 46, 471 F.2d 40?
(2d Cir.), cert, denied, 412 U.S. 939 (1973) . . . .40,48
United Steelworkers of America v. Warrior & Gulf
Navigation Co., 363 U.S. 574 (1960) .................... 56
United Steelworkers of America v. Weber, 47 U.S.L.W.
3408 (1978) (No. 78-432) ....... ............... ............. 2
Yerzosa v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
18 Fair Empl. Prac. Cas. 45 (9th Cir. 1978) ....... 38
Vulcan Society v. Civil Service Commission, 490 F.2d
387 (2d Cir. 1973) ........................ ........................ 60
Wallace v. Debron Corp., 494 F.2d 674 (8th Cir. 1974) 14,15
Washington v. Davis, 426 U.S. 229 (1976) ............... . 16
Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir.),
cert, denied, 429 U.S. 861 (1976) ........................ . 14
Watts v. Indiana, 338 U.S. 49 (1949) ...................... . 49
Weber v. Kaiser Aluminum & Chemical Corp., 571 F.2d
337 (5th Cir. 1978)................................ 1
Weber v. Kaiser Aluminum & Chemical Corp., 563 F.2d
216 (5th Cir. 1977), cert, granted, 47 U.S.L.W.
3408 (1978) (No. 78-435) ....... ..........................passim.
Weber v. Kaiser Aluminum & Chemical Corp., 415 F.
Supp. 761 (E.D. La. 1976) .................. ............. passim
Weinberger v. Weisenfeld, 420 U.S. 636 (1975) . . . . . . 51
White v. Carolina Paperboard Corp., 564 F.2d 1073
(4th Cir. 1977) .............. ................................. . 59
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1951) .......................................... ' ...................... . 34
viii Table of Authorities Continued
Page
F ederal S t a t u t e s :
28 U.S.C. § 1254(1) (1976) .......................... 2
29 U.S.C. § 151 (1976) ............... 55
29 U.S.C. § 171 (1976) ................................................. 55
42 U.S.C. § 2000e (1976) .........................................passim
Table of Authorities Continued IX
Page
C ongressional A u t h o r it ie s :
115 Cong. Rec. 40031 (1969).......................................... 47
Subcommittee on Labor of the Committee on Labor
and Public Welfare, Legislative History of the
Equal Employment Opportunity Act of 1972, 92d
Cong., 2d Sess......................................................... 35
O t h e r A u t h o r it ie s :
44 Fed. Reg. 4422 (1979) ........................................... 26
43 Fed. Reg. 49240 (1978) ......................................... 25
43 Fed. Reg. 46501 (1978) ........ 4
43 Fed. Reg. 38290 (1978) (to be codified in 29 C.F.R.
§ 1607) ' ................................................................... 17
Executive Order 11246, 3 C.F.R. § 339 (1964-1965 Com
pilation), reprinted in 42 U.S.C. § 2000e at 1232
(1976) ..................................................................passim
41 C.F.R. ^ 60-1 to 60-2 (1978) ................................ passim
Draft Federal Contract Compliance Manual, § 7-160.2a
(October 1978) ...................................................... 19
Office of Federal Contract Compliance, United States
Department of Labor, “Technical Guidance Memo
No. 1 on Revised Order No. 4” (February 22,
1974) ....................................................................... 25
Report of the Proceedings of the Judicial Conference
of the United States (1977) ................................. 26
Report of the Study Group on the Caseload of the Su
preme Court, 57 F.R.D. 573 (1972) ...................... 26
Affirmative Action Compliance Manual for Federal
Contractors (BNA), OFCCP Compliance Manual. 18
Blumrosen, The Duty of Fair Recruitment Under
the Civil Rights Act of 1964, 22 Rutgers L. Rev.
465 (1968) ............................. 42
“EEOC Issues Interpretative Memorandum on Su
preme Court’s Two Seniority Decisions,” 134 Daily
Lab. Rep. A-7 (July 12, 1977) ..................... 17
Fair Employment Practice Manual (BNA) 431:73
(1974) ........................... 5,6,36
X Table of Authorities Continued
Page
The Federal Civil Rights Enforcement Effort, 1977
Report of the United States Commission on Civil
W. Gould, Black Workers in White Unions (1977) . . . . 47
H. Hill, Black Labor and the American Legal System,
Vol. 1 (1977) .......................................................... 47
“Interpretative Memorandum of EEOC on Supreme
Court Rulings in Teamsters v. United States and
United Airlines v. Evans,” 134 Daily Lab. Rep.
D-l (July 12, 1977) ................................................ 17
Kennedy, John F., Address in Berkeley at the Univer
sity of California, March 23, 1962, Public Papers
of the Presidents, John F. Kennedy, 1962 ............. 53
Lieberson & Fuguitt, Negro-White Occupational Dif
ferences in the Absence of Discrimination, Am. J.
Soc., Yol. 73, No. 2 (1967) ..................................... 53
F. Marshall & V. Briggs, The Negro and Apprentice
ship (1967) .............................................................. 47
Moore, Steel Industry Consent Decree—A Model for
the Future, 3 Employee Rel. L.J. 214 (1977) . .5, 21, 24
Note, Legal Implications of the Use of Standardised
Ability Tests in Employment and Education, 68
Col. L. Rev. 691 (1968) .......................................... 14
The Potomac Institute, Affirmative Action: The Un
realized Goal (1973) ......................... 47
Preliminary Report on the Revitalization of the Fed
eral Contract Compliance Program (1977) ......... 25
St. Antoine, Affirmative Action: Hypocritical Euphe
mism or Noble Mandatef 10 Mich. J.L. Ref. 28
(1976) .............. 19
S. Slichter, J. Healy, & E. Livemash, The Impact of
Collective Bargaining on Management (I960) . . . . 47
Statement of Barry Goldstein, Assistant General Coun
sel, NAACP Legal Defense and Educational Fund,
Before House Labor Subcommittee on Employ
ment Opportunities, 230 Daily Lab. Rep. E-4 (No
vember 29, 1978) ....... ...................................... 24
Table of Authorities Continued xi
Page
Statement of EEOC Chair Eleanor Holmes Norton
Before House Labor Subcommittee on Employ
ment Opportunities, 229 Daily Lab. Rep, E-l (No
vember 28, 1978) ............................................. .19, 24
United States Commission on Civil Rights, The Chal
lenge Ahead (1976) ............................................... 47
United States Commission on Civil Rights, Employ
ment (1961) ........................... ............................... 47
IN THE
iatpnmu' Court of tbr United States
O ctober T e r m , 1978
No. 78-435
K aiser A l u m in u m & C h e m ic a l C orporation ,
Petitioner,
v.
B r ia n F. W eber , Respondent.
BRIEF FOR PETITIONER
OPINIONS BELOW
The Opinion of the Court of Appeals is reported at
563 F.2d 216 (5th Cir. 1977) and may be found in the
Appendix to Kaiser Aluminum & Chemical Corpora
tion’s Petition for W rit of Certiorari (“ Pet. A pp.”
herein) at pages la-46a. The denial of Petition for
Rehearing and Petition for Rehearing En Banc is re
ported at 571 F.2d 337 (5th Cir. 1978) and is set forth
at Pet. App. 47a. The Opinion of the United States
District Court for the Eastern District of Louisiana is
reported at 415 F. Supp. 761 (1976) and appears at
Pet. App. 48a-64a.
2
JURISDICTION
The judgment of the Court of Appeals was entered
on November 17, 1977 (Pet. App. 110a). A Petition
for Rehearing and a Petition for Rehearing En Banc
were denied on April 17, 1978 (Pet. App. 47a). After
this Court granted an extension of time to file a Peti
tion for Certiorari, the Petition was filed on Septem
ber 14, 1978. The Petition was granted on December
11, 1978, and this case was consolidated with United
Steelworkers of America v. Weber, No. 78-432 and
United States v. Weber, No. 78-436. This Court has
jurisdiction under 28 U.S.C. § 1254(1) (1976).
STATUTES INVOLVED
Sections 703(a), 703(d), 703(h) and 703(j) of Title
V II of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e (1976); Executive Order 11246, 3
C.F.R. § 339 (1964-1965 Compilation), reprinted in 42
U.S.C. § 2000e at 1232 (1976); and Revised Order No.
4, 41 C.F.R. § 60-2 (1978) are set forth in Pet. App.
66a-109a.
QUESTION PRESENTED
May an employer and a union lawfully consider
race in the selection of employees for participation in
a new craft training program established in part to
remedy the past exclusion of blacks from craft em
ployment ?
STATEMENT OF THE CASE
Kaiser Aluminum & Chemical Corporation (“ K ai
ser” or “ the Company” ) is a government contractor,
subject to the affirmative action requirements of Exec
utive Order 11246, as well as Title V II of the Civil
3
Rights Act of 1964, as amended. Employees at its
Gramercy, Louisiana plant are represented by the
United Steelworkers of America, AFL-CIO (“ Steel
workers” or “ the Union” ), and include both unskilled
workers and experienced, skilled craft workers. The
Gramercy plant is one of fifteen Kaiser facilities cov
ered by the 1974 Master Aluminum and Can and Con
tainer Labor Agreement (“ Master Agreement” ) with
the Steelworkers.
The work force in the Gramercy area was about 39
percent black when this case was tried in 1975. The
Kaiser work force was 14.8 percent black at the time,
up from 10 percent in 1969 when, under pressure from
its federal contract compliance agency, the Company
began hiring unskilled production workers on a one-to-
one black-white ratio.1 Despite vigorous recruiting ef
forts, before 1974 only 1.83 percent (five out of 273)
of the skilled craft workers at the Gramercy plant
were black.2
A significant factor in the near absence of blacks
from the crafts was Kaiser’s requirement that new
hires for craft work have prior craft experience. Be
cause blacks had long been excluded from craft unions,
few were able to present such credentials.3 * Despite
1 Pet. App. 52a, 415 F. Supp. at 764; Pet. App. 23a-24a & n.3,
563 F.2d at 231 & n.3; Joint Appendix (hereinafter “ J.A .” ) 60,
81-82.
- J.A. 167. By the time of trial, the number of craft workers had
increased to approximately 290. J.A. 167. This figure was used in
Kaiser’s Petition for Certiorari at 3, and in Judge Wisdom’s dis
senting opinion. Pet. App. 24a, 563 F.2d at 228.
3 Pet. App. 52a, 415 F. Supp. at 764; J.A. 62-63, 65, 71, 76, 93,
104.
4
union pressure to create craft training opportunities
for unskilled production workers, Kaiser had main
tained the experience requirement because of the cost
of on-the-job training, estimated at $15,000 to $20,000
per trainee,4 and its need for fully trained craft
workers.5
In 1973, Kaiser was told by its federal contract com
pliance agency to eliminate the underutilization of
minorities at the Gramercy plant and to assure mi
nority representation in craft jobs at that plant by
various means, including the creation of a training
program.0 At that time, Kaiser was also concerned
about charges of Title Y II violations at its Baton
Rouge plant just north of Gramercy and about litigat
ing a Title V II suit at its Chalmette facility to the
south.7 Concurrently, the Steelworkers were negotiat
ing a resolution to similar charges of race and sex
discrimination in the steel industry.8 The results of
the Steelworkers’ negotiations were embodied in the
consent decree approved in United States v. Alle-
4 J.A. 67-68.
5 J.A. 64-65, 69-70, 75.
8 J.A. 64, 83, 92-93. The demand for assurances of minority rep
resentation was based on requirements contained in Revised Order
No. 4, Pet. App. 84a, 41 C.F.R. § 60-2 (1978). Designated federal
agencies were charged with the responsibility of enforcing these
requirements in various industries prior to the consolidation of
this responsibility in the Department of Labor by Executive Order
12086, 43 Fed. Reg. 46501 (1978).
7 J.A. 83. The Complaint in the suit at Chalmette was filed in
federal district court in September of 1967, and the matter has
been in litigation for 11 years. See Parson v. Kaiser Aluminum
& Chemical Corp,, 575 F.2d 1374 (5th Cir. 1978).
8 See J.A. 83, 96-97.
5
gheny-Ludlum Industries, Inc. which called for race-
and sex-conscious selections for craft training pro
grams.9
W ith its own contract compliance and Title Y II
concerns as well as the steel industry negotiations
clearly in mind,10 the Company and the Union entered
into an agreement in 1974 creating a new craft train
ing program at the fifteen Kaiser facilities covered by
the Master Agreement.11 Although the parties expressly
denied any violations of the Executive Order or Title
Y II they also affirmed that it was their intent “ to fully
comply with both the letter and the sp irit” 12 of those
federal laws. They further stated that the representa
tion of minority and female employees in craft jobs
“ must be increased in order to assure full compliance
with the standards presently being enunciated by the
Government and recent court decisions.”13
By creating this new program the Company and
the Union responded to the almost total absence of
blacks from craft jobs.14 They also provided craft train
ing opportunities to incumbent white employees, such
as Respondent, who did not have experience in craft
9 United States v. Allegheny-Ludlum Indus., Inc., Consent De
cree I, Pair Empl. Prae. Manual (BNA) 431:125, 138 (1974) ; see
Moore, Steel Industry Consent Decree—A Model for the Future,
3 Employee Rel. L.J. 214, 235 (1977).
10 J. A. 83, 97.
11 J.A. 131, 139. (Joint Exhibits 1 and 2.) Similar agreements
were negotiated concurrently by the other major aluminum pro
ducers. J.A. 94.
12 J.A. 139.
13 J.A. 145.
14 J.A. 62-64, 65-66, 71, 91-92.
6
work.15 These opportunities had not previously been
available to anyone.
Because of the relatively greater seniority and higher
proportion of white male production workers, basing
admission to the new program strictly on plant senior
ity would have perpetuated the underutilization of
blacks and women in craft jobs 16 and thereby would
have defeated the stated objective of the program. For
this reason, it was agreed that, as under the Steel Con
sent Decree,17 black and female employees would share
the trainee vacancies equally with white male employ
ees, based on relative seniority within each group until
underutilization of blacks and women was eliminated.18
As a result, in the first year of the program at K aiser’s
Gramercy plant, six white and seven black employees
were admitted to the training program.19 No black em
ployees would have been included among those trainees
if selections had been made solely on the basis of
seniority.20
15 J.A 51, 66.
16 J.A. 71-72, 87, 91.
17 United States v. Allegheny-Ludlum Indus., Inc., Consent De
cree I, Fair Empl. Prac. Manual (BNA) 431:125, 138 (1974).
18 J.A. 137, 144-46. For ease of reference, the term “ blacks” will
be used in connection with the allocation of opportunities at Gram
ercy although under the program women and other minorities were
grouped with blacks.
19 J.A. 66, 168.
20 The Joint Stipulation of Facts states, with respect to the bids
of all Kaiser employees for positions in the craft training pro
gram, that
[i] n each instance, with the exception of the bids for one
position as Air Conditioning Mechanic, which was restricted
to white bidders only, successful black bidders were junior in
7
The Respondent is a white employee who sought
admission to the new training program in 1974. He
was not selected although less senior minority em
ployees were chosen.21 Iiis complaint followed, alleg
ing that the failure to admit him to the training pro
gram constituted racial discrimination against him in
violation of §§ 703(a), (d) and (j) of Title Y II of the
Civil Rights Act of 1964, as amended.
At the trial, the Company pointed to its affirmative
action obligations as a federal contractor under Execu
tive Order 11246 and demonstrated that other efforts
to meet those obligations had failed. Although Com
pany witnesses denied any prior acts of discrimina
tion,22 one acknowledged that before 1969 the Company
seniority to one or more white bidders, who bid unsuccessfully
for said position.
J.A. 128. Two black employees, W. Johnson and E. Mitchell,
would have qualified for the craft training program on the basis
of total plant seniority. See Joint Exhibit 3, J.A. 156, 160, 164.
Both of these employees, however, chose not to enter the program.
No other black employees were senior enough to compete success
fully with white employees for admission to the program.
21 If the sole prerequisite for selection into the training program
had been plant seniority, Respondent would not have been se
lected. Between 35 and 40 employees bidding on the three jobs
on which Weber bid had more seniority. J.A. 88. Respondent’s
standing to bring this suit nevertheless is not at issue. A Title
VII plaintiff need not be currently suffering the effects of a chal
lenged practice if that program will impact on him in the future.
Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186, 1188 (7th Cir.),
cert, denied, 404 IJ.S. 939 (1971). Moreover, this action was
brought on behalf of a class. J.A. 24. Thus, another member of
the class eould have been substituted for Weber even if his stand
ing were found defective. Cox v. Babcock & Wilcox Co., 471 F.2d
13, 15-16 (4th Cir. 1972).
22 Pet. App. 52a, 415 F. Supp. 764; J.A. 72, 77-78, 99, 108.
8
had selected the applicants whom it considered “ best
qualified” for production jobs.23 They also conceded
that the requirement of prior craft experience or
training for craft applicants had a disparate impact
on blacks because of their historical exclusion from
craft unions.24 No detailed justification for the dispro
portionately small share of K aiser’s production and
craft jobs held by blacks was offered.
The District Court decided in the Respondent’s fa
vor on two grounds. F irst, it held that Title V II pre
vents employers and unions from voluntarily making
employee selections based on race even if a court
could require this in a litigated case or approve it in
a consent decree.20 * Second, it accepted K aiser’s denial
of discrimination and declared that even a court would
not be authorized by Title V II to impose a race con
scious remedy in the absence of a finding of discrimi
nation against the Company. The District Court also
concluded that the Company’s obligations under the
Executive Order must be subordinated to the specific
provisions of Title V I I.23
Kaiser and the Steelworkers appealed to the F ifth
Circuit, and were joined by the United States and
the Equal Employment Opportunity Commissi on
(“ EEO C” ) as amici.27 The Court of Appeals rejected
23 J.A. 78, 82.
24 J.A. 63, 91, 93.
25 Pet. App. 59a, 415 P. Supp. at 767-68.
20 Pet. App. 60a-63a, 415 P. Supp. at 768-69.
27 Pet. App. 2a, 563 F.2d at 218. Subsequently, the Govern
ment was granted the right to intervene as a party plaintiff-
appellant. J.A. 175.
9
the District Court’s holding that the scope of volun
tary remedial action was more limited than that which
a court could approve or impose.28 However, in a split
decision it held that, absent evidence to support a find
ing of prior discrimination by the Company, neither
Title V II nor Executive Order 11246 would support
the selection system which Kaiser and the Steelwork
ers had instituted in connection with the new training
program.29
Following denial of petitions for rehearing and re
consideration en bane, petitions to this Court for a
W rit of Certiorari were filed by the Company, the
Union and the Government. These petitions were
granted on December 11, 1978.
SUMMARY OF ARGUMENT
Title V II impels employers to eliminate or change
those employment practices that adversely and dispro
portionately affect blacks and to increase the utiliza
tion of blacks in their work force. This Court has ex
plicitly encouraged employer self-examination in or
der to produce voluntary remedial action. Such en
couragement reflects both Congressional intent and the
fact that attainment of the objectives of Title V II de
pends on voluntary action. Neither direct government
supervision of the work place nor prolonged and ex
pensive litigation is a viable alternative.
Voluntary action is not only the “ preferred means”
for resolving Title V II problems, but it is also ex
pressly provided for under Executive Order 11246.
Regulations issued pursuant to that Order state that
28 Pet. App. 13a, 563 F.2d at 223.
29 Pet. App. 14a-15a, 563 F.2d at 224.
10
federal contractors must eliminate underutilization of
minorities and women, particularly in craft jobs from
which those groups have historically been excluded.
The almost total absence of blacks from craft jobs
at K aiser’s Gramercy facility posed a serious threat
to the Company’s contract compliance status. I t also
presented the clear possibility of Title V II litigation
which had already embroiled two neighboring Kaiser
plants and which threatened to engulf the entire steel
and aluminum industries. The Company had sought to
overcome the situation unsuccessfully through vigor
ous recruiting. Nevertheless, K aiser’s insistence on
prior experience as a condition for craft work or
training had produced a work force that reflected the
historical exclusion of blacks from the craft unions.
The Company and the Steelworkers addressed this
m atter in their 1974 labor negotiations. While both
parties denied liability for the situation, they agreed
on a remedy in response to what they perceived to be
requirements imposed by government regulations and
court decisions. Their agreement took the form of a
new craft training program which would enable pro
duction workers without craft experience to become
craft-qualified. Although the purpose of the program
was to assure that black workers would have craft
opportunities, the negotiated remedy also guaranteed
white production workers a 50 percent share of the
trainee vacancies. In this way, the expectations of both
white and black employees were significantly expanded
by the 1974 agreement. Furthermore, because the craft
training program was a new one, no prior expectations
of white or black employees were diminished.
11
The F ifth Circuit m ajority condemned this program
because of the parties’ denial of liability for past dis
crimination and the absence of a showing that a court
could have ordered such a remedy under the facts of
the case. In reaching this conclusion, the court erro
neously judged voluntary action by standards that are
appropriate only in contested litigation. I t ignored the
reservoir of private authority that is fundamental to
our free, pluralistic society and it misconstrued the
relationship of Title Y II and Executive Order 11246.
Where underutilization is present and is traceable
to identified discrimination, voluntary race conscious
action by employers may be required by Executive
Order 11246 and is consistent with Title Y II. De
manding a finding or admission of liability as a condi
tion for approving a voluntary race conscious remedy,
or restricting the benefits of that remedy to actual
victims of a proven violation, would be illogical, un
realistic and counterproductive. Such a finding or ad
mission of liability has never been required where a
party chooses to enter into a consent decree, rather
than to litigate to final judgment. For similar reasons
it should not be required here. Otherwise, employers
will face the paralyzing dilemma of choosing between
waiting to be charged with discrimination against mi
norities or women or acting voluntarily and risking
successful challenges by white males unless evidence
of the employer’s past discrimination is produced and
not contested. E ither result would add significantly to
the burden on already overloaded federal agencies and
would increase still further the heavy civil rights ease
load currently in the federal courts.
W hat is needed is a standard that permits an em
ployer and union to act voluntarily within a “ zone of
12
reasonableness” : first, to make the determination that
the circumstances justify the adoption of a race con-
scions remedy and, second, to design and implement a
reasonable remedy. In this case, the presence of identi
fied although external discrimination and the threat of
legal compulsion indicate that Kaiser and the Steel
workers reasonably concluded that a race conscious
remedy was needed. Additionally, the remedy was nar
rowly drawn to cure the problem of minority under
utilization in the crafts and to do so with due regard
for the interests of white employees.
This program is, in fact, a model of what can be
achieved through voluntary remedial action: the meld
ing of some of the most compelling interests of civil
rights and labor management relations. As in many
other kinds of situations, the Union was obliged to
represent and reconcile the interests of all of its mem
bers fairly and openly. Through the collective bar
gaining process, the Steelworkers succeeded in ob
taining the sought-after craft training opportunities
for all incumbent production workers at the same time
that it undertook a remedy for the obvious underutili
zation problem. The interests of white workers were
thereby protected, indeed promoted, both in the pro
cess and in the result.
The lawfulness of the training program should not
be in doubt. While it provides for racially specific se
lections, no other device would have enabled the parties
both to provide craft training to a significant number
of blacks and to utilize their seniority system to in
crease the opportunities for all incumbent employees.
Indeed, it is programs such as this that offer the best
hope of advancing that day when race conscious action
13
is no longer necessary to eradicate the vestiges of dis
crimination.
I. TITLE VII PERMITS AN EMPLOYER AND UNION WITHOUT
PROOF OR ADMISSION OF LIABILITY TO ADOPT VOLUN
TARILY A PROGRAM THAT PROVIDES CRAFT JOBS TO
EMPLOYEES OF A CLASS PREVIOUSLY EXCLUDED BY
IDENTIFIED DISCRIMINATION
A. Tiile VII Has Been Consirued To Spur Employers And
Unions To Take Race Conscious Action To Overcome The
Effects Of Past Discrimination
In its first m ajor decision under Title V II, this
Court drew on precedent from civil rights voting
cases 30 * * * and unanimously declared that
practices, procedures, or tests neutral on their face,
and even neutral in terms of intent, cannot be
maintained if they operate to “ freeze” the status
quo of prior discriminatory employment prac
tices.
Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971).
The Court has since explained that its interpretation
in Griggs was necessary in order that
childhood deficiencies in the education and back
ground of minority citizens, resulting from forces
beyond their control, not be allowed to work a
cumulative and invidious burden on such citizens
for the remainder of their lives.
McDonnell Douglas Corp. v. Green, 411 U.S 792, 806
(1973) .
As a result of the Griggs rule, employers have been
held to violate Title V II in circumstances which reveal
30 This Court has stated that the ‘ ‘ broad language ’ ’ of Title
VII “ frequently can be given meaning only by reference to public
law concepts.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 57
(1974) .
14
more about society at large than about their particular
practices or motives. W here disparate impact is found
employers have been held liable for restricting job op
portunities because of an employee’s history of garnish
ment,31 arrest record,82 participation in a methadone
maintenance program,33 or—as in this case—lack of
past craft experience or training.34 Indeed, employers
and unions have abandoned or have been enjoined from
using some neutral criteria, such as a high school edu
cation requirement, which were once considered to be
not only useful to the employer or union but also
socially desirable.35
31 Wallace v. Debron Corp., 494 F.2d 674 (8th Cir. 1974) ; John
son v. Pike Corp. of America, 332 F. Supp. 490 (C.D. Cal. 1971).
32 Gregory v. Litton Systems, Inc., 472 F.2d 631 (9th Cir. 1972).
33 Beazer v. New York City Transit Auth., 414 F. Supp. 277
(S.D.N.Y. 1976), modified in part and aff’d in part on other
grounds, 558 F.2d 97 (2d Cir. 1977), cert, granted,----- U.S.------ ,
98 S. Ct. 3121 (1978) .
34 Rodriguez v. Bast Texas Motor Freight, 505 F.2d 40, 58-59
(5th Cir. 1974), vacated on other grounds, 431 U.S. 395 (1977);
Freeman v. Motor Convoy, Inc., 409 F. Supp. 1100, 1116-17 (N.D.
Ga. 1976) ; Crockett v. Green, 388 F. Supp. 912, 918-21 (E.D. Wis.
1975), aff’d, 534 F,2d 715 (7th Cir. 1976). See also Alvarez-
Ugarte v. City of New York, 391 F. Supp. 1223 (S.D.N.Y. 1975).
35 The high school education requirement was found to violate
Title VII in the Griggs case and many others. See, e.g., Donnell
v. General Motors Corp., 576 F.2d 1292 (8th Cir. 1978); Watkins
v. Scott Paper Co., 530 F.2d 1159, 1182 (5th Cir.), cert, denied,
429 U.S. 861 (1976); Dozier v. Chupka, 395 F. Supp. 836, 850
(S.D. Ohio 1975). Prior to the Griggs decision, employers and
unions were allowed by federal officials to insist on a high school
education to support stay-in-school campaigns. Note, Legal Im
plications of the Use of Standardized Ability Tests in Employment
and Education, 68 Col. L. Rev. 691, 719 (1968).
15
The Griggs decision compels employers to be sensi
tive to the effects of their selection criteria upon mi
nority and white candidates. Even close scrutiny of
existing employment data may be inadequate because a
court may find disparate impact by reference to the
“ potential applicant pool” 36 or simply by reference to
regional37 or national norms.38
Quite apart from the impact of current selection
rates, employers must recognize their vulnerability to
charges of discrimination under Title Y II where the
statistical profile of their work force reflects under
utilization of certain minority groups. Though an em
ployer is not required by Title Y II to maintain a work
force which is a “m irror image” of the work force in
the surrounding area, International Brotherhood of
Teamsters v. United States, 431 U.S. 324, 339 n.20
(1977), there is an expectation that
absent explanation . . . nondiseriminatory hiring
practices will in time result in a work force more
or less representative of the racial and ethnic com
position of the population in the community from
which employees are hired.
Id. Moreover, “ gross statistical disparities . . . alone
may . . . constitute prima facie proof of . . . discrimina
tion,” Hazelwood School District v. United States, 433
U.S. 299, 307-08 (1977), or may bolster or restore a
claim of disparate treatment. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 805 & n.19 (1973).
36 Dothard v. Rawlinson, 433 U.S. 321, 330 (1977).
37 Griggs v. Duke Power Co., supra, 401 U.S. at 430 n.6.
38 Dothard v. Rawlinson, supra, 433 U.S. at 329-31; Wallace v.
Debron Corp., 494 F.2d 674 (8th Cir. 1974) ; Stevenson v. In t’l
Paper Co., 516 F.2d 103, 115-16 (5th Cir. 1975).
16
There are, of course, exemptions and other defenses
to a prima facie case of discrimination which an em
ployer may assert. For example, the underrepresenta
tion of minorities in an employer’s work force is not
unlawful if the employer can show that his selection
criteria have “ a manifest relationship to the employ
ment in question,” Griggs v. Duke Power Co., supra,
401 U.S. at 432.39 However, these defenses have been
narrowly construed and have not yet been sufficiently
defined to give many employers confidence in their
ability to withstand an attack. As this Court empha
sized in Washington v. Davis, 426 U.S. 229, 247 (1976),
it is not enough under Title Y II simply “ to demon
strate some rational basis for the challenged prac
tices.” I t is also essential that those practices
be “ validated” in terms of job performance in any
one of several ways, perhaps by ascertaining the
minimum skill, ability or potential necessary for
the position at issue and determining whether the
qualifying tests are appropriate for the selection
of qualified applicants for the job in question.
Id.
Even validation may not be enough. Plaintiffs may
still “ show that other tests or selection devices, without
a similarly undesirable racial effect, would also serve
the employer’s legitimate interest in ‘efficient and
trustworthy workmanship.’ ” Albemarle Paper Co. v.
Moody, 422 U.S. 405, 425 (1975). Furthermore, the
EEOC has continued to insist that employers must
search for alternative selection devices having less 39
39 In addition, this Court's opinion in Hazelwood, supra, 433
U.S. at 309-13, indicates that choice of appropriate statistical
standards or proper time periods of liability may sometimes pro
vide other means of rebutting a prima facie case.
17
discriminatory effect and substantially equal valid ity40
and some courts have held that the employer’s failure
to make such a search is a basis for rejecting its vali
dation defense.41 Employers have also been chastised
for persisting in efforts to establish the job-related-
ness of their selection criteria which have a disparate
im pact42 and, in one case, an intent to discriminate has
even been inferred from such efforts.43
This Court’s decision in the Teamsters case has re
stored the defensibility of many seniority systems that
seemed lost as a result of decisions of lower courts.44
However, the EEOC has narrowly interpreted the
scope of Teamsters,"15 the Departments of Justice and
Labor have sought to minimize its impact in cases under
40 43 Fed. Reg. 38290, 38297 (1978) (to be codified in 29 C.F.R.
§ 1607.3B).
41 Allen v. City of Mobile, 18 Fair Empl. Prae. Cas. 217, 222-23
(S.D. Ala. 1978) ; Association Against Discrimination in Employ
ment v. City of Bridgeport, 454 F. Supp. 751, 757 (D. Conn.
1978).
42 United States v. City of Chicago, 385 F. Supp. 543, 554-55
(N.D. 111. 1974).
43 Dickerson v. United States Steel Corp,, 17 Empl. Prac. Dee.
If 8528 at 6731-33 (E.D. Pa. 1978).
44 See, e.g., Local 189, Papermakers v. United States, 416 F.2d
980 (5th Cir. 1969), cert, denied, 397 U.S. 919 (1970). This Court
acknowledged in Teamsters that the prepetuation of past discrim
ination resulting from the operation of a seniority system would
constitute a Title VII violation under Griggs v. Duke Power Co.
were it not for its interpretation of the exemption in Section
703(h). 431 U.S. 324 at 349-50.
See “ EEOC Issues Interpretative Memorandum on Supreme
Court’s Two Seniority Decisions,” 134 Daily Lab. Rep. A-7, A-8
(July 12, 1977). The full text of the EEOC Interpretative Memo
randum appears at D-l of that issue.
18
Executive Order 11246 46 and courts of appeals are
requiring district courts to give plaintiffs broad lati
tude in attacking the bona tides of seniority systems if
they choose to do so.47 As a result, the likelihood that
a seniority system that perpetuates past discrimination
will be held to violate Title Y II is diminished but not
eliminated.48
The pressure that results from these Title Y II de
velopments is intensified for employers which, like
Kaiser, are government contractors. These companies
have an additional independent obligation under Ex
ecutive Order 11246 to assess any “ underutilization”
of minorities or women in any of their job groups 49
and to act to cure that problem in the minimum feasi
ble time.50 Failure to take such action can result in a
finding of noncompliance and, if not remedied, the is
suance of a show cause order, ineligibility for future
46 See, e.g., United States v. Bast Texas Motor Freight Sys., Inc.,
564 F.2d 179, 184 (5th Cir. 1977).
47 Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1192
(5th Cir. 1978); Aeha v. Beame, 570 F.2d 57, 64 (2d Cir. 1978);
James v. Stockham Valves & Fittings Co., 559 F.2d 310, 351-53 (5th
Cir. 1977), cert, denied, 434 U.S. 1034 (1978). Courts have also
indicated that the lawfulness of such systems may not extend to
lines of progression associated with them. Patterson v. American
Tobacco Co., 586 F.2d 300, 303 (4th Cir. 1978).
48 See Sears v. Atchison, Topeka & Santa Fe Ry., 454 F. Supp.
158, 180 (D. Kan. 1978) ; Chrapliwy v. Uniroyal, Inc., 15 Fair
Empl. Prac. Cas. 822, 826 (N.D. Ind. 1977).
49 Pet. App. 90a, 41 C.F.R. § 60-2.11 (1978).
50 Office of Federal Contract Compliance, United States Depart
ment of Labor, ‘ ‘ Technical Guidance Memo No. 1 on Revised Order
No. 4 ” at 3 (Feb. 22, 1974); Affirmative Action Compliance
Manual for Federal Contractors (BNA), OFCCP Compliance
Manual ft 3-501 (d) at 3 :0009.
19
contracts, termination of contracts or debarment.51 The
availability of these sanctions means that the “ inevi
table thrust of affirmative action programs is to impel
employers” to take race conscious action.52
In this still-evolving legal context, employers must
be race conscious. Even if they faced only the threat of
injunctive action, they would have reason to consider
revising useful practices which have a disparate im
pact on minorities rather than endure the expense and
uncertainties of litigation and the possibly greater
problems resulting from an imposed remedial order.
Certainly, given the encouragement of make-whole
class-wide remedies,53 the pressure for “ voluntary”
race conscious action is at least as compelling as this
Court intended it to be when it declared in Albemarle
Paper Co. v. Moody, supra, that back pay should gen
51 41 C.F.R. §§60-1.20, 1.24, 1.26 (1978); Executive Order No.
11246, § 209.
52 St. Antoine, Affirmative Action: Hypocritical Euphemism Or
Noble Mandate?, 10 Mich. J.L. Ref. 28, 34 (1976). Dean St.
Antoine observed further, “ Lip service is paid to the concept of
nondiscrimination to the point where the conscientious employer
or union must begin to feel schizophrenic, but in the end it is the
‘results’ that count.” Id.
53 Albemarle Paper Co. v. Moody, supra, 422 U.S. at 421. To
obtain back pay, class members need only meet some minimal
standards of interest and qualifications. The employer then has
the burden of disproving their entitlement. International Bhd. of
Teamsters v. United States, supra, 431 U.S. at 362. See also Draft
Federal Contract Compliance Manual, § 7-160.2a (Oct. 1978);
Statement of EEOC Chair Eleanor Holmes Norton Before House
Labor Subcommittee on Employment Opportunities, 229 Daily
Lab. Rep. E-l, E-8 (Nov. 28, 1978).
20
erally be awarded where discrimination is found in
order to
provide the spur or catalyst which causes em
ployers and unions to self-examine and to self-
evaluate their employment practices and to en
deavor to eliminate, so fa r as possible, the last
vestige of an unfortunate and ignominious page
in this country’s history.
422 U.S. at 417-18 (citations omitted).
The Court’s opinion in Albemarle Paper indicates
that self-examination was intended to produce volun
tary corrective action. However, it did not define the
permissible scope of that action. Employers, therefore,
still face the challenging task of eliminating the pres
ent effects of past discrimination against minorities
and women without violating the rights of white
males.54 * * The inherent difficulty of this task frequently
cannot be avoided by resort to subtle consideration of
race and sex, as approved in some of the opinions in
Regents of the University of California v. B a kk e ,------
U. S . ------, 98 S. Ct. 2733 (1978). While race may be
used as “ only one element in a range of factors” in
considering applicants to a university, the flexibility
54 In McDonald v. Santa Pe Trail Transp. Co., 427 U.S. 273, 280
(1976), Mr. Justice Marshall reminded employers that Title VII
“ prohibits racial discrimination against the white petitioners in
this ease on the same standards as would be applicable were they
Negroes.” However, the issue presented in this case was preserved
in McDonald as the Court noted that the employer did not con
tend that it had taken the challenged actions pursuant to an
affirmative action program. “ We emphasize that we do not con
sider here the permissibility of such a program, whether judicially
required or otherwise prompted,” the Court cautioned. 427 U.S.
281 n.8.
21
inherent in those choices is often absent from the in
dustrial work place.
An employer’s discretion is particularly limited in
situations where jobs are subject to bidding and eligi
bility procedures established in collective bargaining
agreements and in past practice. Unilateral action
taken to alter existing working conditions or to estab
lish new conditions—even under the strictest form of
government compulsion—have been resisted by unions
through costly and disruptive strikes55 and litigation.56
An employer who fails to seek union concurrence in
such m atters invites new problems.57
55 See Crown Zellerbach Corp. v. Wirtz, 281 P. Supp. 337, 339-40
(D.D.C. 1968); United States v. Building & Constr. Trades Council,
271 F. Supp. 447, 449 (E.D. Mo. 1966).
06 See EEOC v. AT&T, 365 F. Supp. 1105 (E.D. Pa. 1973),
aff’d in part and rev’d and remanded in part, 506 F.2d 735 (3d
Cir. 1974) where the unions’ right to intervene to object to portions
of a consent decree initially entered in 1971 was sustained. Their
challenge was subsequently rejected in EEOC v. AT&T, 556 F.2d
167 (3d Cir. 1977), cert, denied suh nom. Communications Workers
of America v. EEOC,----- U.S. — 98 S. Ct. 3145 (1978).
57 Moore, Steel Industry Consent Decree—A Model for the Fu
ture, 3 Employee Rel. L.J. 214, 235 (1977) (“ Where the union
is not a party to the agreement, whether it be a court order, a
conciliation agreement, or other form of agreed-upon settlement,
the resulting problems can be horrendous.” ). See also Southbridge
Plastics Div., W.R. Grace & Co. v. Local 759, United Rubber
Workers, 565 F.2d 913, 917 (5th Cir. 1978) (conciliation agreement
between employer and EEOC, to which union was not a party, held
not to override contradictory provisions in collective bargaining
agreement; arbitration of “ all grievances arising out of the Com
pany’s breach, through its employment of the conciliation agree
ment, of the seniority provisions contained in the [collective bar
gaining] agreement” ordered) ; McAleer v. AT&T, 416 F. Supp.
435 (D.D.C. 1976) (male who was entitled to promotion under
collective bargaining agreement, but lost promotion to female under
EEOC-AT&T conciliation agreement, to which union was not a
party, held to have a cause of action against AT&T for damages).
22
The most stubborn barrier to subtle consideration of
race and sex in many employment situations is senior
ity, because it is frequently the decisive factor in allo
cating job opportunities among equally qualified in
cumbent employees. Seniority leaves no middle ground
for discretion: I t either controls within prescribed
limits or it does not; race and sex are either factored
into the decision to a specified extent or they are
ignored.
This aggregation of rights, obligations, interests and
expectations inevitably produces conflicts among the
parties concerned. There may well be disagreement as
to whether any corrective action is required and if so
of what form and scope it should be. Moreover, em
ployers who do not take corrective action may be
charged with violating the rights of minority workers.
Those who act voluntarily may be charged with dis
criminating against nonminority employees. One
means of resolving this dilemma is through costly and
lengthy litigation.58 * I f this is the only option, however,
the benefits of voluntary action, which this Court so
clearly contemplated in Albemarle Paper and other
cases, will be lost.
58 In his dissent from the majority decision below, Judge Wisdom
noted that unless that decision is reversed employers may have no
alternative other than to wait to be sued or to seek a declaratory
judgment. Pet. App. 27a, 563 F.2d at 230. In either event, much
time and expense could be required to resolve the situation. Even
where the employer’s plan has EEOC approval, resolution of dis
putes through declaratory judgment actions may take several years.
See Southbridge Plasties Div., W.R. Grace & Co. v. Local 759,
United Rubber Workers, 565 F.2d 913 (5th Cir. 1978); Jersey
Central Power & Light Co. v. Local 327, IBEW, 508 F.2d 687 (3d
Cir. 1975), vacated and remanded sub nom. EEOC v. Jersey Cen
tral Power & Light Co., 425 U.S. 987 (1976).
23
B. Voluniary Action Is Vital To The Implementation Of Title VII
And Other Federal Laws Intended To Achieve Equal Em
ployment Opportunity
This Court has recognized that “ cooperation and
voluntary compliance were selected as the preferred
means” for achieving the objectives of Title V II.
Alexander v. Gardner-Denver Co., 415 U.S. 36, 44
(1974).59 Voluntary compliance is more explicitly con
templated under Executive Order 11246.60 Government
contractors and subcontractors not only are prohibited
from discriminating on the basis of race, religion, na
tional origin or sex, but also are obligated to take “ af
firmative action” to ensure against such discrimina
tion.61 *
There are several reasons for this emphasis on vol
untary action:
(1) The nation’s ultimate objective is an economy
that is free from race, ethnic, sex or religious
prejudice and that operates with minimal govern
ment regulation.
(2) Employers and unions are usually the most
knowledgeable parties about changes in their em-
59 See also Hutchings v. United States Indus., Inc., 428 F.2d 303,
309 (5th Cir. 1970) ; Culpepper v. Reynolds Metals Co., 421 F.2d
888, 891 (5th Cir. 1970) ; Dent v. St. Louis-San Francisco By., 406
F.2d 399, 402 (5th Cir. 1969), cert, denied, 403 U.S. 912 (1970),
rehearing denied, 404 U.S. 875 (1971).
60 Pet. App. 78a, Executive Order 11246, § 209(b) ; 41 C.F.R.
§§ 60-1.20(b), 60-1.24(e) (2) (1978).
61 Pet. App. 70a, Executive Order 11246, § 202; Pet. App. 84a-
109a, Revised Order 4, 41 C.F.R. § 60.2 et seq. (1978).
24
ployment practices that need to be made and how
best to make them.02
(3) Private parties can act voluntarily much
more quickly and efficiently than is possible
through orders emanating from the administra
tive or the judicial process.
(4) Voluntary compliance conserves administra
tive and judicial resources for those situations
which require enforcement action.
The last two reasons—efficiency and conservation of
resources—are increasingly important. Their relation
ship to the first reason—the realization of equal em
ployment opportunity—is self evident: Efficient use of
administrative and judicial resources is imperative if
federal efforts to promote equal employment oppor
tunity are to succeed. Prom the time of its establish
ment in 1965 the EEOC has been swamped by a rising
tide of charges. I t has only recently begun to reduce
this problem by narrowing the focus of its investiga
tions and by deferring further actions against systemic
discrimination.63 The Department of Labor, which is
responsible for enforcing Executive Order 11246 with
62 ‘ 1 Courts are generally less competent than employers to re
structure business practices . . . ” Furnco Constr. Corp. v. Waters,
----- U.S. ----- , 98 S. Ct. 2943, 2950 (1978). Cf. Moore, supra, 3
Employee Rel. L.J. at 235. See discussion of importance of collec
tive bargaining in this context at 55-58 below.
63 Statement of EEOC Chair Eleanor Holmes Norton before
House Labor Subcommittee on Employment Opportunities, 229
Daily Lab. Rep. E-2, E -8 (Nov. 28, 1978) ; Statement of Barry
Goldstein, Assistant General Counsel, NAACP Legal Defense and
Educational Fund before House Labor Subcommittee on Employ
ment Opportunities, 230 Daily Lab. Rep. E-4 (Nov. 29, 1978).
25
respect to approximately 275,000 supply and service
contractors and 50,000 building construction contrac
tors,64 bas been similarly shorthanded. As a result, in
1976 only about 10 percent of the contractors covered
by the Executive Order were the subject of compliance
reviews,65 and enforcement proceedings against alleg
edly noneomplying contractors were still lagging a
year later.66
The attention devoted to defining the affirmative
action responsibilities of government contractors has
also been obviously limited. A part from the issuance
and subsequent revision of Order No. 4,67 and the re
lease of a series of technical guidance memoranda,68
little has been done to define those actions that non
construction contractors must take to comply with
their obligations under the Executive Order.69 * * * * Even
64 The Federal Civil Rights Enforcement Effort, 1977 Report of
the United States Commission on Civil Rights at 100.
85 Id. at 113.
66 Id. at 139-43. While the recent consolidation of Executive
Order responsibilities in the Department of Labor, 43 Fed. Reg.
49240 (1978), may well improve the administration of the Execu
tive Order, limitations of staffing will continue to force difficult
choices as to priorities.
87 Pet. App. 84a-lQ9a, 41 C.F.R. § 60-2 et seq. (1978).
88 See, e.g., Office of Federal Contract Compliance, United States
Department of Labor, “ Technical Guidance Memo No. 1 on Re
vised Order No. 4” (Feb. 22,1974).
69 Over a year ago a Special Task Force recommended to the
Secretary of Labor that demographers be employed to study avail
ability data and to “ set benchmarks for industrial job groups by
labor market areas.” Preliminary Report on the Revitalization of
the Federal Contract Compliance Program (1977) at 78. No action
has yet been announced on that recommendation. No estimate was
included or has subsequently been released of the staffing or budget
needed to implement this recommendation.
26
in the construction area where enforcement efforts
were first focused, the government has been able to
establish specific goals in only seven of 103 target
areas.70 Instead, it has been forced to rely on “ home
town” plans that have been voluntarily developed in
only thirty-five additional areas.71
The courts at every level are deluged by the volume
of civil rights and other litigation. From 1972 to 1977
the number of employment discrimination cases filed
in federal district courts increased by more than 580
percent.72 The burden at the appellate levels is equally
alarming.73
Administrative agencies and the courts may provide
more guidance than they have in the past.74 There is,
70 Philadelphia, Pa.; Washington, D.C.; Atlanta, Ga.; St. Louis,
Mo.; San Francisco, Ca.; Camden, N.J. ; and Chicago, 111. The Fed
eral Civil Rights Enforcement Effort, supra at 127.
71 Id. at 126. The Special Task Force also recommended to the
Secretary of Labor in 1977 that goals for minority and female
participation by construction trade be promulgated for each area
in which a construction contract is to be performed.
72 Report of the Proceedings of the Judicial Conference of the
United States (1977), Table 25 at 219-20. This represents an in
crease from 1015 cases filed in 1972 to 5931 filed in 1977.
73 See the dissenting opinion of Mr. Justice Stevens to the Court’s
per curiam opinion in Board of Trustees v. Sweeney, ----- U.S.
----- , 99 S. Ct. 295, 296 (1978) ; the dissenting opinion of Messrs.
Justices White and Blackmun to the Court’s denial of certiorari
in Brown Transp. Corp. v. Atcon, 47 U.S.L.W. 3387 (Dec. 5, 1978)
(No. 77-1581) ; Report of the Study Group on the Caseload of the
Supreme Court, 57 F.R.D. 573 (1972).
74 The EEOC has belatedly recognized its responsibility to issue
affirmative action guidelines. 44 Fed. Reg. 4422 (1979). However,
these guidelines generally leave employers and unions to decide
when their situation calls for affirmative action and provide little
insight into the level or extent of goals which should be included in
affirmative action plans or the selection devices which are appro
priate to attain those goals.
27
however, no reasonable prospect that the situation will
improve significantly in the future. The growing
awareness of and commitment to the vindication of
civil rights will probably produce increasing numbers
of issues and complaints as we move from a segre
gated economy to one that is truly integrated. More
over, it is unrealistic to expect compliance officials or
judges to assess the situation at each facility of each
employer; to determine how much of present under
utilization is attributable to past discrimination by the
employer or union; to identify the victims of such
discrimination; and to devise an appropriate set of
remedial actions. Instead, employers and unions must
generally be expected to analyze their own situations
and to develop and implement reasonable affirmative
action programs in the light of that analysis. This
expectation can be realized only if the conditions which
govern employer and union self-analysis and self
prescription are not self-defeating.
C. Voluntary Race Conscious Action Is Lawful Under Title VII
The Court of Appeals in this case ostensibly recog
nized the need for voluntary action when it reversed
the tria l court’s ruling that employers and unions could
not adopt race conscious remedial programs without
judicial authorization. I t expressly acknowledged that
“ voluntary compliance in eliminating unfair employ
ment practices is preferable to court action and that
private settlement without litigation is the central
theme of Title V II .” 75
This acknowledgment is gutted, however, by tho ma
jo rity ’s additional holding that race conscious action
75 Pet. App. 13a, 563 P.2d at 233.
28
is permissible only if a court could have ordered it to
remedy a defendant’s past discrimination. As a practi
cal matter, this requirement will effectively suppress
most voluntary race conscious action because of the
difficulty of predicting judicial determinations of lia
bility and remedy and the consequences of confessing
to Title V II liability. As a legal m atter, the major
ity ’s analysis is equally faulty because the range of
situations in which private action is permissible is
greater than the range of situations in which a court
may order the parties to act. Employers and unions
are free to act subject only to restraints imposed by
the mandates and prohibitions of law. In contrast, a
court may act only where a violation of law has oc
curred or is about to occur, for which the law prescribes
the action as a remedy.
This contrast is stark in the context of Title V II.
Although courts have “ plenary powers to secure com
pliance” with the Act,76 a court could not have ordered
Kaiser and the Steelworkers to establish a training
program to increase opportunities for minorities and
women in the face of its own finding that neither of
them had discriminated against those groups.77 Nor
would Title V II authorize courts to order employers
or unions to abandon qualification standards that are
significant measures of job performance simply to pro
vide for proportional selection of minority or female
76 Alexander v. Gardner-Denver Co., supra, 415 U.S. at 45.
77 But note that courts have ordered the establishment of train
ing programs to overcome the effects of past discrimination for
which the employer has been found to be responsible. Buckner v.
Goodyear Tire & Rubber Co., 339 P. Supp. 1108 (N.D. Ala. 1972),
aff’d per curiam, 476 F.2d 1287 (5th Cir. 1973).
29
applicants.78 But this conclusion does not necessarily
condemn such action if it is undertaken voluntarily.
This Court has recognized the distinction between
the scope of private and judicial action under Title
Y II and in other contexts. In Franks v. Bowman
Transportation Co., 424 U.S. 747 (1977), it observed
that employers and unions may themselves go further
to enhance “ the seniority status of certain employees
for purposes of furthering ‘public policy’ than Title
Y II would require, even when their action was “ detri
mental to the expectations acquired by other employ
ees under the previous seniority agreement.” 424
U.S. at 778-79. Similarly, in connection with school
integration policies, Mr. Chief Justice Burger, writing
for a unanimous Court in Swann v. Charlotte-MecMen-
burg Board of Education, 402 U.S. 1, 16 (1971), noted
that as a m atter of educational policy, school authori
ties may require “ a prescribed ratio of Negro to white
students reflecting the proportion for the district as a
whole” even though a federal court could not order
such a remedy in the absence of a Constitutional viola
tion.79
The question here is not, therefore, what a court
could have done under the circumstances, but whether
78 “ Secretaries must be able to type. There is no way around that
necessity.” Local 189, Papermakers v. United States, 416 F.2d 980,
989 (5th Cir. 1969), cert, denied, 397 U.S. 919 (1970); see also
Furnco Constr. Corp. v. Waters, ----- U .S.--------- , 98 S. Ct. 2943
(1978).
79 A majority of the Court approved a similar result in Bakke,
supra. Although it is clear that no court could have ordered the
medical school to use race as a factor in selecting students for
admission in light of the facts of that case, the school’s freedom
to do so for policy reasons was confirmed. 98 S.Ct. at 2764.
30
what Kaiser and the Union did violated Title V II.
Contrary to the opinion of the F ifth Circuit, the an
swer is “ no” for two reasons: (1) Employers and
unions may voluntarily take race conscious action to
remedy identified discrimination without a prior find
ing or admission that they are liable for the discrimi
nation; and (2) race conscious action may benefit per
sons who were not victims of the discrimination iden
tified.
1. Employers And Unions May Voluntarily Take Race Con
scious Action To Remedy Identified Discrimination Without
A Prior Finding Or Admission Ol Their Liability
Race conscious action to remedy past discrimination
has been upheld repeatedly by this Court.80 The im
portance and lawfulness of voluntary remedial action
pursuant to Executive Order 11246 and Title V II have
also been stressed.81 However, according to the F ifth
Circuit majority, Title V II precludes voluntary race
conscious action by an employer and union to remedy
more than their own discrimination. Asserting that a
race conscious measure that exceeds those limits “ loses
its character as an equitable remedy and must be
banned as an unlawful racial preference,” the Court
of Appeals held that such a preference cannot be justi
fied by the effects of “ societal discrimination” on
blacks.
80 This observation was made in several of the opinions in Bakke,
supra. See 98 S. Ct. at 2754 (Powell, J.), 2766, 2779-81 (Brennan,
White, Marshall & Blackmun, JJ., concurring in part), 2804 (Mar
shall, J., concurring in part), 2808 (Blackmun, J., concurring in
part) ; see also United Jewish Organizations, Inc. v. Carey, 430
U.S. 144, 159-62 (1977) (White, J.), 171 (Brennan, J., concurring
in part) ; Lau v. Nichols, 414 U.S. 563 (1974); Swann v. Charlotte-
Meeklenburg Bd. of Educ., supra, 402 U.S. at 16; McDaniel v.
Barresi, 402 U.S. 39, 41 (1971); Green v. County School Bd., 391
U.S, 430 (1968).
81 See discussion, supra at 23-24.
31
This analysis suggests a degree of clarity that does
not currently exist about the line between unjustifiable
importation of external discrimination into the work
place and business necessity. As suggested earlier,
what distinguishes “ unlaw ful” quotas to attain racial
balance from “ law ful” quotas to correct past discrimi
natory practices82 is often only one’s perception of
the adequacy of an employer’s or union’s justification
for the employment practice that produced a racial
imbalance.83 The difficulty and expense of establishing
or even fully assessing such a justification may be con
siderable,84 and the outcome of that process is often
unpredictable before litigation.
82 The majority below noted that several circuits have held that
“ quotas or preferential treatment merely to attain racial balance
of the work force are unlawful, while quotas to correct past dis
criminatory practices are not.” Pet. App. 9a, 563 F.2d at 221
(citations omitted).
83 See discussion, supra at 13-22.
84 In discussing the issue of job-relatedness in Association Against
Discrimination in Employment v. City of Bridgeport, 454 F. Supp.
751, 755 (D. Conn. 1978), Judge Daly stated:
In search of an answer, the attorneys and the Court have been
led by the conflicting testimony of two experts, who spoke in
an alien tongue through a labyrinth of statistical analysis that
might well have intimidated Odysseus.
In the decision below, Judge Wisdom observed in his dissent that
[djivining the result a court would reach in any litigation
is no small problem. In Title VII litigation it is particularly
serious, in spite of the earnest efforts of courts, including this
Court, to clarify the law. Different courts may apply the law
in arguably proper distinct ways. Furthermore, decisions in
these cases are fact sensitive. An employer or a union must not
only be sure of the law, but must be confident of what facts
will be found. Those problems afflict an employer with a single
plant. Kaiser and the Union faced a more difficult situation.
They were writing a national contract, covering 15 different
plants. Each plant has its own area, its own history. Fifteen
32
Nevertheless, to say that an employer may act to
correct a situation, despite questions about Ms liability
for creating it, is not to say that he may act without
cause or for purely altruistic reasons. Race conscious
action should plainly be confined to situations in which
it is genuinely remedial. This means that identified
discrimination * 85 86 must exist, as it did in this case.8®
The training program challenged here was imple
mented in a context in which the Congress, adminis
trative agencies and the courts have all determined
“ that past discrimination has handicapped various
minority groups to such an extent that disparate im
pact could be traced to identifiable instances of past
separate legal opinions would be required because, under the
majority’s approach, each plant will be judged on its own
facts. To complicate matters further, many companies, includ
ing Kaiser, operate in several federal circuits. If the inter
pretation of Title VII law varies among the circuits, a na
tional agreement is even more difficult.
Pet. App. 27a; 563 F.2d at 230.
85 As Mr. Justice Powell recently noted in Regents of the Univ.
of Cal. v. Bakke, supra, 98 S. Ct. at 2754-55 n.40:
Every decision upholding the requirement of preferential hir
ing under the authority of Executive Order 11246 has empha
sized the existence of previous discrimination as a predicate
for the imposition of a preferential remedy. Contractors Asso
ciation, supra; Southern Illinois Builders Assn. v. Ogilvie,
471 F.2d 680 (C.A.7 1972); Joyce v. McCrane, 320 F. Supp.
1284 (N.J. 1970); Weiner v. Cuyahoga Community College
District, 19 Ohio St,2d 35, 249 N.E. 907, cert, denied, 396 U.S.
1004, 90 S. Ct. 554, 24 L. Ed.2d 495 (1970). See also Rosetti
Contr. Go. v. Brennan, 408 F.2d 1039, 1041 (C.A.7 1975);
Associated General Contractors of Massachusetts, Inc. v. A lt
shuler, 490 F.2d 9 (C.A.l 1973), cert, denied, 416 U.S. 957,
94 S. Ct. 1971, 40 L. Ed.2d 307 (1974); Northeast Const. Co.
v. Romney, 157 U.S. App. D.C. 381, 383, 390, 485 F.2d 752,
754, 761 (1973).
86 See discussion at 46-49 below.
33
discrimination,” 87 That determination was part of
the basis for the federal compliance regulations with
which Kaiser and the Steelworkers were trying to
comply.88 Those regulations direct the employer to
remedy underutilization regardless of whether it re
sults from the contractor’s discrim ination;89 they also
require him to give special attention to craft jobs in
his work force analysis and goal se tting90 because mi
norities and women are most likely to be underutilized
in those jobs. In upholding the Philadelphia Plan,91
87 Regents of the Univ. of Cal. v. Bakke, supra, 98 S. Ct. at 2758
n.44 (Powell, J.).
88 The Memorandum of Understanding between Kaiser and the
Steelworkers states:
[Tjhe Joint Company-Union Implementation Committee has
reviewed all of the existing Trade, Craft, and Assigned Main
tenance classifications with respect to their representation of
minority and female employees. Said review has determined
that, notwithstanding the efforts made by the company and
the union and/or the gains made via the company’s various
affirmative action plans per EO 11246, such representation
must be increased in order to assure full compliance with the
standards presently being enunciated by the government and
recent court decisions.
J.A. 144-45.
89 Contractors Ass’n v. Secretary of Labor, 442 F.2d 159, 175
(3d Cir.), cert, denied, 404 U.S. 854 (1971). The requirement to
eliminate underutilization, within appropriate limits, can be based
on the public interest in assuring “ utilization of all segments of
society and the available labor pool.” EEOC v. AT&T, 556 F.2d
167 (3d Cir. 1977), cert, denied sub nom. Communications Workers
of America v. EEOC, 98 S. Ct. 3145 (1978).
99 Pet. App. 90a, 41 C.F.R. § 60-2.11 (1978).
91 Contractors Ass’n v. Secretary of Labor, supra, 442 F.2d at
177. The Fifth Circuit described and subscribed to the decision in
Contractors Ass’n, but reached an inconsistent conclusion.
34
the Third Circuit approved such requirements and
made it clear that evidence of discrimination need not
be supplied by or attributed to the contractors who are
directed to take race conscious action.82
The requirements imposed on government contrac
tors pursuant to the Executive Order must, of course,
be reconciled with the provisions of Title V II. Al
though the statute prevails in the case of a clear con
flict,93 such conflicts should be inferred reluctantly.94
Congress was aware that government contractors were
subject to affirmative action obligations when it en
acted Title V II in 1964,95 and, significantly, it pro
vided in § 703(j) only that Title V I I did not require
actions to reduce work force imbalances. Accordingly,
as the Third Circuit held in Contractors Association,
this provision imposes no limits on the Executive
Order program.96 Moreover, Congress has rejected
amendments to Title V II that would have put such a
92 To the same effect, see Associated Gen. Contractors v. Altshuler,
490 F.2d 9 (1st Cir. 1973), cert, denied, 416 U.S. 957 (1974);
Southern 111. Builders Ass’n v. Ogilvie, 471 F.2d 680 (7th Cir.
1972). The position of Kaiser in recruiting skilled craftsmen in
Louisiana is arguably quite similar to that of some contractors
trying to staff a construction project in Philadelphia. Neither is in
control of the labor supply.
93 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1951).
94 Id. at 595 (Frankfurter, J., concurring).
95 Section 709(d) of Title YII reflected Congressional awareness
of the contract compliance program by providing that the report
ing requirements of the Act would not apply to employers who are
required to file reports under Executive Orders forbidding employ
ment discrimination by federal contractors.
98 442 F .2d a t 172.
35
restriction on affirmative action that is required under
the Executive Order.97
The flaws in the F ifth Circuit’s conclusion are also
highlighted by judicial consideration of Title V II
consent decrees. Many courts have entered decrees
ordering employers and unions to change their em- r ;
97 During Congressional consideration of the 1972 amendments
to Title VII, two proposals by Senator Ervin to prohibit quotas
and goals like those contemplated in Order No. 4 (and implemented
in the Philadelphia Plan) were defeated by a two-to-one margin.
Subcommittee on Labor of the Committee on Labor and Public Wel
fare, Legislative History of the Equal Employment Opportunity
Act of 1972, 92d Cong., 2d Sess. 1074, 1716.
Senator Ervin explained that his first proposal would
prevent any department, agency, or office [sic] of the United
States from requiring an employer to practice discrimination
in reverse by employing persons of a particular race or a par
ticular national origin or a particular sex in either fixed or
variable numbers, proportions, percentages, quotas, goals or
ranges.
Id. at 1043-44. Senator Javits responded that the amendment must
be rejected because
it would undercut the whole concept of affirmative action as
developed under Executive Order 11246. . ..
Id. at 1048.
Senator Ervin’s explanation of his second proposed amendment
was similar to that offered for his first. Id. at 1713. Again, Senator
Javits was the chief spokesman for the opposition, saying :
We have held that . . . the Federal Government . . . has dis
cretion as to whom it will contract with and will not contract
with, to affirmatively encourage non-discrimination and full
utilization of minority group employees and women. So we—
and the courts have sustained us—-permitted the Federal Gov
ernment to put into effect an affirmative action plan.
Id. at 1715. Senator Javits’ position on this amendment also pre
vailed overwhelmingly, and the Senate rejected any suggestion that
Title VII should bar contract compliance agencies from requiring
“ fixed or variable numbers, proportions, percentages, quotas, goals
or ranges. ’ ’
36
ployment practices for the benefit of minorities and
female employees without having found that the de
fendants acted unlawfully, and despite the denial in
the decree that such discrimination occurred. United
States v. Allegheny-Ludlum Industries, Inc., 63 F.R.D.
1 (N.D. Ala. 1974), a ff’d, 517 F.2d 826 (5th Cir.),
cert, denied, 425 U.S. 944 (1975) ; 98 EEOC v. AT& T,
419 F. Supp. 1022 (E.D. Pa. 1976), a ff’d, 556 F.2d 167
(3d Cir. 1977), cert, denied sub nom. Communications
W orkers of America v. EEOC, —-—■ U .S .------, 98 S.
Ct. 3145 (1978).
Judge Higginbotham addressed this m atter directly
in disposing of the contention that the AT& T decree
went too far in subordinating seniority to the attain
ment of affirmative action promotion goals. He noted
that denials of unlawful conduct are “ a standard fea
tu re” in consent decrees, that the Supreme Court has
held that “ the failure of a defendant to admit liability
does not affect the validity of the consent decree,” 98 99 100
and that “ very few consent decrees would be negotiated
if an admission of liability by the defendants was a
sine qua non. ’ ’ 100 Moreover, he declared that the in
terveners’ attack on the AT& T consent decree had
“ arguable legal m erit” only because the decree was
the product of conciliation rather than litigation. Rea
soning that it would surely be incongruous if the use
98 While the majority below stated that the steel consent decree
eliminated “ patterns and practices of discrimination in the steel
industry,” Pet. App. 13a, 563 F.2d at 223, the decree does not
contain any finding to that effect and instead includes an express
denial by each of the defendants of such discrimination. Fair Bmpl.
Prac. Manual (BNA) 431:125 (1974). For similar provisions in
the AT&T decree see id. 431:73.
99 Citing Swift & Co. v. United States, 276 U.S. 311, 327 (1928).
100 419 F. Supp. at 1038 n.16.
37
of a Congressionally desired means would leave the
result vulnerable to attack on “ the ground that the
Congressional intent had been violated,” Judge H ig
ginbotham concluded that it would “ frustrate the
purposes of Title V II to treat the absence of evidence
about AT&T’s discrimination . . . and AT&T’s denial
of liability for such discrimination, as insuperable
obstacles to the ordering of affirmative action.” 101
Courts should take at least as broad a view of the
situation when voluntary affirmative action by em
ployers and unions is challenged by those who think
it violates Title V II. Employers and unions cannot be
expected to concede discrimination in circumstances
justifying voluntary action any more than they can
be expected to admit discrimination as part of a con
sent decree. Nor should they be forced to invite govern
mental agencies or civil rights organizations to inter
vene and charge them with past discrimination. In
deed, such a development would present them with a
Hobson’s choice. I f they defend their past actions suc
cessfully, their affirmative action plan may be rejected.
I f they fail to defend their past actions adequately,
they may incur liability or at least encourage litigation
and allegations of discrimination. Thus, under the
.Fifth C ircuit’s standard, “ [t]he employer and the
union are made to walk a high tightrope without a
net beneath them.” 102
I f this situation is to be avoided, employers must be
given adequate leeway to take race conscious action.
In deciding how much leeway to give them, courts must
101419 F. Supp. at 1039-40.
102 Pet. App. 26a, 563 F.2d at 230.
38
recognize that the value of voluntary action—like the
value of consent decrees—will be lost if a meticulous
assessment must he made of whether the remedial
action being taken is precisely calibrated to any dis
crimination for which the employer or union might
be liable. In addition to the time needed to evaluate
the merits of possible defenses to underutilization,
such a judgment would require tedious determinations
of the injuries which occurred within remediable time
periods and the amount of relief appropriate for such
non-time-barred injuries.103
This kind of analysis usually cannot be avoided in
contested litigation. I t is counterproductive, however,
to require it in cases that involve consent decrees or
voluntary action. I f employers and unions are held to
the stricter standards of court-ordered remedies, vol
untary action will be paralyzed. As the F ifth Circuit
pointed out in Florida Trailer & Equipment Co. v Beal,
284 F.2d 567, 571 (5th Cir. 1960), parties would be
hesitant to explore the likelihood of settlement if they
feared that, in order to approve the agreement, the
court would have to determine “ that there was no
escape from liability or no hope of recovery and hence
no basis for a compromise.” W hether or not uncer
tainty is conducive to the attainment of Title Y II goals,
103 Timeliness issues abound and could occupy courts and liti
gants indefinitely, e.g., distinguishing between the effects of pre-
Act and post-Act discrimination as indicated by International
Bhd. of Teamsters v. United States, 431 U.S. 324 (1977), and
determining the application of the appropriate period of limitations
for liability and remedial purposes. Compare United Air Lines v.
Evans, 431 U.S. 553 (1977), with Acha v. Beame, 531 F.2d 648
(2d Cir. 1976) and Verzosa v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 18 Fair Empl. Prae. Cas. 45 (9th Cir. 1978).
39
it is a fact. Judicial recognition of this situation is
essential if a realistic assessment is to be made of the
permissible scope of voluntary action. I t should result
in the courts declaring unlawful only those measures
which, under the circumstances, are clearly excessive
or unreasonable.104
In summary, where underutilization is present and
can be traced to identified discrimination, voluntary
race conscious action by employers is contemplated by
Executive Order 11246 and is consistent with Title V II.
To condition such action on an employer’s actual or
assumed responsibility for the underutilization would
be illogical, unrealistic, and counterproductive.
2. Race Conscious Action Need Not Be Limited To Restoring
Victims Of Past Discrimination To Their Rightful Places
The F ifth Circuit m ajority imposed an additional
limitation on the scope and even the possibility of vol
untary race conscious action by holding that Title V II
requires race conscious action to be limited to those
who were the victims of past discrimination.105 This
limitation either ignores or misconstrues a long line
of cases, including some from the F ifth Circuit itself,
in which the benefits of race conscious remedies were
not limited to those who were themselves victimized
by the practices.106
104 See discussion of this standard at 45-46 below.
105 Pet. App. 16a-19a, 563 F.2d at 224-27.
106 United States v. City of Philadelphia, 573 F.2d 802 (3d Cir.
1978), petition for cert, filed, 46 U.S.L.W. 3766 (U.S. June 13,
1978) (No. 77-1718) ; Davis v. County of Los Angeles, 566 F.2d
1334 (9th Cir. 1977), cert, granted, 46 U.S.L.W. 3780 (June 20,
1978) (No. 77-1553) ; EEOC v. AT&T, 556 F.2d 167 (3d Cir. 1977),
cert, denied sub nom. Communications Workers of America v.
EEOC, ----- U.S. ----- , 98 S. Ct. 3145 (1978); United States v.
40
Title V II relief is meant not only to compensate or
to make whole individuals, but also “ to achieve equality
of employment opportunities and remove barriers that
have operated in the past to favor . , . white employees
over other employees.” Griggs v. Duke Poiver Co.,
supra, 401 U.S. at 429-30. See also Franks v. Bowman
Transportation Co., supra, 424 U.S. a t 783; Albemarle
Paper Co. v. Moody, supra, 422 U.S. at 417. This “ pro
phylactic” objective—which this Court has called “ the
prim ary objective of Title V I I ”—is a partner to the
goal of making whole individual victims of discrimina
tion, but it reaches beyond the person to the class.
Compensation of an individual for harm he suffered
does not assure persons of his race equal access to em
ployment opportunities. Disadvantage to the group
lingers long after the injury to the individual has been
enjoined and paid for.
A number of courts have specifically recognized that
“ the presence of identified persons who have been dis
criminated against is not a necessary prerequisite to
ordering affirmative relief.” Carter v. Gallagher, 452
City of Chicago, 549 F.2d 415 (7th Cir.), cert, denied sub nom.
Arado v. United States, 434 U.S. 875 (1977) ; United States v.
Elevator Constructors Local 5, 538 F.2d 1012 (3d Cir. 1976) ;
Crockett v. Green, 534 F.2d 715 (7th Cir. 1976) ; Patterson v.
Newspaper & Mail Deliverers, 514 F.2d 767 (2d Cir. 1975), cert,
denied, 427 U.S. 911 (1976) ; United States v. Masonry Contrac
tors Ass’n, 497 F.2d 871 (6th Cir. 1974) ; NAACP v. Allen, 493
F.2d 614 (5th Cir. 1974) ; Morrow v. Crisler, 491 F.2d 1053 (5th
Cir.) (en banc), cert, denied, 419 U.S. 895 (1974) ; United States
v. N.L. Indus., Inc., 479 F.2d 354 (8th Cir. 1973) (en banc);
United States v. Wood Lathers Local 46, 471 F.2d 408 (2d Cir.),
cert, denied, 412 U.S. 939 (1973) ; Carter v. Gallagher, 452 F.2d
315 (8th Cir. 1971) (en banc), cert, denied, 406 U.S. 950 (1972);
Local 53, In t’l Ass’n of Heat & Frost Insulators v. Vogler, 407
F.2d 1047 (5th Cir. 1969).
41
F.2d 315, 330 (8th Cir. 1971) (en banc), cert, denied,
406 U.S. 950 (1972). Accord, Davis v. County of Los
Angeles, 566 F.2d 1334, 1343 (9th Cir. 1977), cert,
granted, 46 U.S.L.W. 3780 (June 20, 1978) (No. 77-
1553). Addressing this issue under the Executive Or
der, the Third Circuit concluded that the “ broader
governmental interest” in full utilization of all seg
ments of the work force “ is sufficient in itself to justify
relief directed at classes rather than individual victims
of discrimination.” EEOC v. A T A T , supra, 556 F.2d
at 175.
This Court has not yet ruled on the bounds or means
of appropriate prophylactic remedies under Title V II
or the Executive Order but it has never suggested that
the limitation imposed by the F ifth Circuit in this case
is appropriate.107 108 In fact, in none of the Executive
Order cases cited with approval by Mr. Justice Powell
in Bakhe were goals restricted by the concept of indi
vidual entitlement. See, e.g., Contractors Association
v. Secretary of Labor, supra; Southern Illinois Build
ers Association v. Ogilvie, supra; Associated General
Contractors, Inc. v. Altshuler, supra.10* Those cases im
plicitly recognized that racial employment goals by
107 rp0 prescribe the limits of individual entitlement to compensa
tion for past discrimination, as this Court did in Teamsters, is not
to define the scope of appropriate prophylactic action. Only Title
VII remedies to individual victims of discrimination were at issue
in that case. There, this Court held that even the legitimate expec
tations of white employees may be intruded upon to the extent
necessary to make whole those individual victims. The court in
Teamsters did not address what kinds of relief might be “ necessary
to ensure the full enjoyment of the rights protected by Title VII. ’
431 U.S. at 361.
108 The substantial federal interest in the voluntary achievement
of the goals of equal employment opportunity was articulated by
the Congress in Title VII and by presidents since 1941 through
42
their nature are not concerned with redressing injury
to individuals but with changing the composition of a
work force. They reflect an awareness that overcoming
conditions that operate to the disadvantage of an identi
fiable group or class frequently requires the presence
of that group in the work force in significant numbers.
Until tiiat situation exists others may be deterred from
applying or even seriously considering the possibility
of doing so.109 Race conscious selection of job candidates
can achieve that result in a reasonable time period.
Though difficult questions arise regarding the rate of
selection of members of underutilized groups and how
long such a system should continue, these problems
should not obscure the fact that race conscious selec
tions may be the only mechanism available to guaran
tee that the barriers to minorities have been genuinely
eliminated.110 * *
the federal contract compliance program. These goals include the
full utilization of minorities and women throughout the work force.
It is complemented by a separate national policy objective to nar
row the economic gap between white and minority and male and
female workers. The affirmative action obligations of federal con
tractors like Kaiser have been recognized and upheld repeatedly by
the courts for the additional reason explained by the Third Circuit
in Contractors Association: The federal government has an interest
in assuring that it has available the largest possible pool of quali
fied workers for the performance of its projects. See discussion of
this interest in 442 F.2d at 169-71.
iou p rofessor Blumrosen has analogized the minimum level of mi
nority or female representation in a work force or job group that
will produce meaningful free choice to the “ take off point” in de
veloping countries when foreign aid may be reduced or eliminated.
Blumrosen, The Duty of Fair Recruitment Under the Civil Rights
Act of 1964, 22 Rutgers L, Rev. 465, 488 (1968).
110 See NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974).
43
This conclusion has been reached in numerous cases
where race conscious action not limited to former un
successful applicants has been ordered to overcome
substantial underutilization of minorities or women in
entry level jobs.111 The situation is no different where,
as here, the jobs at stake are entry level jobs which the
Company and the Union have agreed to make available
for bidding by incumbent employees in order to afford
them additional opportunities.112 In these situations,
as in the case of hiring, the focus should be on the
reasonableness of the action 113 and on the substantial
public interest being furthered by the race conscious
measure at issue.
111 See cases cited note 106 supra. Similarly, there is no sugges
tion in Mr. Justice Powell’s opinion in Regents of the TJniv. of Cal.
v. Bakke,----- U.S.------ , 98 S. Ct. 2733 (1978), that those students
who may be admitted to medical school hereafter at least in part
because race is “ a factor’’ in their selection must demonstrate that
they were previously the victims of discrimination. This is readily
understood, since the legitimate objective sought to be achieved
there—diversity of the student body—is not pegged to the harm
suffered by any individual. It is an objective that exists indepen
dently and for its own sake.
112 Cf. EEOC v. AT&T, supra. Quotas have been used in the
construction industry to reorder priorities for referring workers to
new assignments. United States v. Elevator Constructors Local 5,
supra; Contractors Ass ’n v. Secretary of Labor, supra; United
States v. Sheet Metal Workers Local 36, 416 F.2d 123 (8th Cir.
1969) ; Local 53, In t’l Ass’n of Heat & Frost Insulators v. Vogler,
supra.
113 See cases cited note 106 supra. See also this Court’s recent
decision in United Jewish Organizations, Inc. v. Carey, supra, 430
TJ.S. at 155, where the Court held that the use of racial quotas to
effect legislative reapportionment is permissible.
44
II. THE TRAINING PROGRAM ADOPTED BY KAISER AND THE
STEELWORKERS MEETS THE APPROPRIATE STANDARDS
FOE JUDGING THE LAWFULNESS OF VOLUNTARY AFFIR
MATIVE ACTION
Court-ordered or -approved remedies involving ra
cial preferences have already been carved out of the
concept of unlawful discrimination.114 Various ex
planations have been offered for this seeming excep
tion to the prohibitions of Title V II, but underlying
each explanation is the simple fact that it is not pos
sible to eradicate the disparate effects of past practices
on minorities without race conscious remedies.115 This
fact is equally true whether the remedy in question is
entered by a court or adopted voluntarily.
114 See discussion, supra at 32-43.
115 Some courts have reasoned that- the prohibitions against race
consciousness embodied in §§ 703(a) and 703(j) define violations,
but do not limit remedies. See. e.g., United States v. Elevator Con
structors Local 5, 538 F.2d 1012, 1019-20 (3d Cir. 1976). Others
have concluded that prohibition of remedial race conscious action
would frustrate Title V II’s broad prophylactic purpose and could
not have been contemplated by Congress. United States v. IBEW
Local 38, 428 F.2d 144, 149-50 (6th Cir.), cert, denied, 400 U.S.
943 (1970). Still others have relied upon the legislative history
described in note 97 supra. See, e.g., Elevator Constructors, supra,
538 F.2d at 1019-20. Finally, in his dissent below, Judge Wisdom
argued that remedial race consciousness may be characterized as
the drawing of distinctions based on past discriminatory status,
using race as a proxy for that status. See Pet. App. 38a-39a; 563
F.2d at 235. Whatever the precise argument chosen, the principles
underlying all of them are the same: Because “ Congress did not
intend to freeze an entire generation of Negro [or other protected
group] employees into discriminatory patterns that existed before
the act,” Quarles v. Phillip Morris, Inc., 279 F. Supp. 505, 516
(E.D. Va. 1968), and because reading Title VII in a “ color blind”
fashion would “ freeze the status quo and . . . foreclose remedial
action,” Contractors Ass’n v. Secretary of Labor, supra, 442 F.2d
at 173, race must be taken into account in some circumstances.
45
I t is not enough merely to establish the need for vol
untary action. Even the courts do not have unfettered
discretion in framing race conscious remedies,116 al
though the relevant standards have not been consis
tently articulated. I f there is a thread running through
out the decisions, however, it is a requirement that the
remedy be necessary and that neither injunctive nor
compensatory relief be sufficient.117
In a nonlitigated situation, such a standard would be
counterproductive for it would require the kind of
proof that would deter voluntary action and diminish
its value.118 W hat is needed instead is what Judge W is
dom described as a “ zone of reasonableness,” that is,
an area in which employers and unions can act provided
that (1) their situation calls for some remedy for
identified discrimination and (2) they choose a remedy
adapted fairly to the circumstances.
This kind of standard is comparable to that which
the courts have traditionally utilized in determining
whether a collective bargaining agreement fairly ad
justs the interests of different classes of employees. In
Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953),
for example, the Court rebuffed an attack on a revision
of seniority rights among various groups of employees,
saying that
[a] wide range of reasonableness must be allowed
a statutory bargaining representative in serving
the unit it represents, subject always to complete
~~^See Sledge v. J.P Stevens & Co., 585 F.2d 625, 647 (4th Cir.
1978).
117 See id. at 646-47; NAACP v. Allen, 493 F.2d 614, 620-21 (5th
Cir. 1974).
118 See discussion, supra at 37-39.
46
good faith and honesty of purpose in the exercise
of its discretion.119
This “ zone of reasonableness” standard should be
utilized in answering two critical issues here: (1) Was
the determination by Kaiser and the Steelworkers to
take race conscious remedial action reasonable under
the circumstances? and (2) W as the remedy they
adopted a reasonable one ? In both cases, the answer is
yes. First, the parties acted reasonably given the
presence of identified though external discrimination
and the threat of legal compulsion. Second, the remedy
was reasonably tailored to cure the problem and to do
so with due regard for the interests of white employees.
A. The Company And Union Reasonably Decided To Adopt A
Race Conscious Remedy Under The Circumstances Ol This
Case
1 . The Existence Of Identified Discrimination Was Established
The Bakke case involved a program that depended
on a generalized concept of social disadvantage infer-
entially linked to the small number of minority doc
tors. Such an “ amorphous concept of in ju ry” to mi
nority groups was distinguished by Mr. Justice Powell
from conditions present in cases such as Contractors
Association, supra, which involved “ identified discrimi-
110 Cf. Humphrey v. Moore, 375 U.S. 335, 350 (1964). The Court
held that, after the consolidation of the operations of two compa
nies, the union could lawfully favor meshing the two seniority lists,
even though the combined seniority system disadvantaged some
union members. Mr. Justice White, writing for the Court, observed
that the decision to “ dovetail” the seniority lists was not “ arbi
trary discrimination,” even though the combined seniority system
disadvantaged some union members. The situation is not signifi
cantly different when a majority group member alleges that affir
mative action constitutes racial discrimination against him. See
note 145 below.
47
nation. ’ ’ In the latter situation, remedial action is law
ful; in the former, it is not.120
There can be no doubt which situation Kaiser and
the Steelworkers faced. The record in this case reveals
that a history of very specific wrongs 121 had resulted
in a clearly defined deprivation.122 This, in turn, created
120 Even the latter kind of situation does not necessarily involve
identified victims of discrimination.
121 The historical exclusion of blacks from the crafts is docu
mented in many sources. See United States Commission on Civil
Eights, The Challenge Ahead 61-94 (1976); S. Slichter, J. Healy
& E. Livernash, The Impact of Collective Bargaining on Manage
ment 30-31, 37-38 (1960); H. Hill, Black Labor and The American
Legal System, Vol. 1 at 235-47 (1977) ; W. Gould, Black Workers
in White Unions 281-96 (1977); The Potomac Institute, Affirmative
Action: The Unrealized Goal 97-115 (1973); F. Marshall & V.
Briggs, The Negro and Apprenticeship 34-45 (1967) ; United States
Commission on Civil Rights, Employment 127-38 (1961); 115 Cong.
Rec. 40031 (1969) (Order of Arthur A. Fletcher, Assistant Secre
tary for Wage and Labor Standards, dated June 27, 1969, finding
exclusionary practices by labor organizations in construction trades
and requiring implementation of “ Philadelphia Plan” ); Contrac
tors Ass’n v. Secretary of Labor, supra, 442 F.2d at 164 (noting
findings of Assistant Secretary Fletcher in his order dated Septem
ber 23, 1969, subsequent to public hearings).
122 Testimony at the trial elaborated on the situation. J.A. 63,
90-93, 98-100. This situation was exacerbated by the Company’s
insistence on prior craft experience as a requirement for craft work
or training and by its use of a “ best qualified’’ standard for hiring
production employees prior to 1969. The latter standard may have
contributed to the disproportionately low percentage of black em
ployees at Gramercy with pre-1969 seniority. This in turn made it
impossible to secure significant numbers of minority craft trainees
through selection based strictly on seniority in any reasonable time
frame. See note 138 below. Although Kaiser utilized the best quali
fied standard in good faith, this defense would be “ insufficient to
dispel a prima facie case of systematic exclusion.” Alexander v.
Louisiana, 405 U.S. 625, 632 (1972), cited in Teamsters, supra, 431
U.S. at 342 n.24.
48
the underlying need for the training program. As Mr.
Thomas Bowdle, Kaiser’s EEO Director, testified at
trial, there “ has been*ample evidence presented in the
last six or eight years that minorities were discrimi
nated [against], in fact, in terms of their ability to get
into the building trades occupations.” 121 The historical
exclusion of minorities from the trade unions has been
the subject of litigation and administrative proceed
ings time and time again.124 In many of those cases,
123 J.A. 104. Company witness Dennis English also explained:
Most of the training for craftsmen over the years has come
through the building trades. They have apprenticeship pro
grams, whereby a candidate spends four or five years in an
apprenticeship program, and he graduates as a skilled crafts
man. Until just recently, blacks did not get into those building
trades programs.
J.A. 63. Mr. Bowdle offered similar testimony. J.A. 91, 93.
124 EEOC v. Local 14, In t’l Union of Operating Eng’rs, 553 F.2d
251 (2d Cir. 1977); United States v. Elevator Constructors Local 5,
538 F.2d 1012 (3d Cir. 1976) ; EEOC v. Local 638, 532 F,2d 821
(2d Cir. 1976) ; United States v. Masonry Contractors Ass’n, 497
F,2d 871 (6th Cir. 1974); Associated Gen. Contractors, Inc. v. Alt
shuler, supra; Sims v. Sheet Metal Workers Local 65, 489 F.2d 1023
(6th Cir. 1973); United States v. Wood Lathers Local 46, 471 F.2d
408 (2d Cir.), cert, denied, 412 U.S. 939 (1973) ; United States v.
Carpenters Local 169, 457 F.2d 210 (7th Cir.), cert, denied, 409
U.S. 851 (1972); United States v. Ironworkers Local 86, 443 F.2d
544 (9th Cir.), cert, denied, 404 U.S. 984 (1971); United States v.
Sheet Metal Workers Local 36, 416 F.2d. 123 (8th Cir. 1969) ; Local
53, In t’l Ass’n of Heat & Frost Insulators v. Vogler, 407 F,2d 1047
(5th Cir. 1969) ; United States v. Plumbing Indus. Local 24, 364
F. Supp. 808 (D.N.J. 1973) ; United States v. Local 357, IBEW,
356 F. Supp. 104 (D. Nev. 1973); United States v. Plumbers Local
73, 314 F. Supp. 160 (S.D. Ind. 1969). Administrative proceedings
are referred to in Southern 111. Builders Ass’n v. Ogilvie, 471 F.2d
680, 681 (7th Cir. 1972) (Dept, of Transportation determination) ;
Contractors Ass’n v. Secretary of Labor, supra, 442 F.2d at 163-
64 (Dept, of Labor hearings and determinations) and Joyce v.
McCrane, 320 F. Supp. 1284, 1287 (D.N.J. 1970) (OFCC hearings).
49
remedial action has been directed repeatedly against
the contractors whose work places are the locations
where the effects of discrimination must be overcome.125
Kaiser saw its own situation in a similar light, and
considered the new training program
to be remedial in the sense that, in our opinion,
there was obviously discrimination in the past, not
ours, per se, but the total sum and substance of
education in training to obtain skills, that created
the situation that called for a remedy such as the
one we derived out of our discussions.126
Mr. Justice Frankfurter once observed, “ there comes
a point where this Court should not be ignorant as
judges of what we know as men.” 127 To insist, as the
F ifth Circuit did here, that no evidence in this case
provided a basis for remedial action is to do just that.
2. The Threat Of Legal Compulsion Was Present
Section 703(j) of Title V II specifies that nothing
in the Act requires racial balancing. I t does not, how
ever, preclude race conscious action required by other
federal regulations any more than it limits the scope
125 EEOC v. Local 638, supra at 829-31; United States v. Masonry
Contractors Ass’n, 497 F,2d 871, 877-78 (6th Cir. 1974) ; Associated
Gen. Contractors, Inc. v. Altshuler, supra, 490 F.2d at 12, 19; Sims
v. Sheet Metal Workers Local 65, 489 F.2d 1023, 1027 (6th Cir.
1973) ; United States v. Ironworkers Local 86, 443 F.2d 544, 553-54
(9th. Cir.), cert, denied, 404 U.S. 984 (1971); United States v.
Plumbing Indus. Local 24, 364 F. Supp. 808, 831 (D.N.J. 1973) ;
United States v. Plumbers Local 73, 314 F. Supp. 160, 166-67 (S.D.
Ind. 1969); Southern 111. Builders Ass’n v. Ogilvie, supra, 471
F.2d at 681, 6 8 6 ; Contractors Ass’n v. Secretary of Labor, supra,
442 F.2d at 163; Joyce v. McCrane, supra, 320 F. Supp. at 1288,
1291.
126 J.A. 98.
127 Watts v. Indiana, 338 U.S. 49, 52 (1949).
50
of equitable remedies under Title V II. EEOC v.
AT& T, supra, 556 F.2d at 174. Kaiser, therefore, could
not rely on this section to excuse it from meeting/ its
affirmative action obligations as a federal contractor.
Nor would that provision protect the Company from a
p r i m a facie case of discrimination under Title V II
based on work force statistics.
Kaiser could not help but be aware of its vulner
ability to suit at Gframercy. Two neighboring plants
were already subject to Title V II proceedings 123 and
the minority utilization statistics at Cramercy stood
out as a plain invitation to litigants.128 129 Its compliance
agency had stated that minority representation in the
crafts had to be improved, and the threat of sanctions
to enforce those recommendations was obvious.130 Under
these circumstances, voluntary action may in reality
be a misnomer, for legal compulsion was present as
surely as if a suit had been filed or a contract lost.
128 Kaiser was concerned about Title VII litigation directed at
its Chalmette plant, Parson v. Kaiser Aluminum & 'Chemical Corp.,
575 F.2d 1374 (5th Cir. 1978), and at its Baton Rouge facility. It
also had in mind a Title VII suit at the neighboring Crown Zeller-
bach paper plant. J.A. 83.
129 J.A. 60, 167. This Court has indicated that statistical evidence
of less underutilization of blacks than was disclosed at Gramercy
may be sufficient to establish a prima facie case of discrimination.
See Hazelwood School Dist. v. United States, 433 U.S. 299, 311 n.T7
(1977).
130 J.A. 76-77, 82-83, 92-93. In contrast, a voluntary promotion
quota was struck down in Detroit Police Officers Ass’n v. Young,
446 F. Supp. 979, 1000-01, 1005-09 (E.D. Mich. 1978), where there
was no evidence of underutilization or legal compulsion. Although
the department, as a federal grantee, was subject to affirmative
action requirements imposed by the Law Enforcement Assistance
Administration, the court noted that LBAA had never so much as
criticized the department’s promotional policies or utilization data.
The court, therefore, rejected the department’s defense of legal
compulsion.
51
B. The Training Program Adopted By The Company And The
Union Provided A Reasonable Remedy
1. There Is A Direct Relationship Between The Remedy And
The Problem
In approving race- or sex-conscious measures, this
Court and others have generally sought to avoid overly
broad remedies. A demonstrable relationship between
the nature and scope of the remedy and the problem
sought to be cured has usually been required.131 Here
that relationship is apparent.
While it is not possible to calibrate with precision
the degree of harm with the scope of a remedy,132 the
analysis in this case is straightforward. The training
program was conceived to cure a narrowly defined
problem : the absence of qualified minority craft work
ers. The cause was identified: Minorities were unable
to meet the Company’s craft experience requirement
because of their past exclusion from the trade unions.
The consequences of K aiser’s failure to correct the
underutilization problem were p la in : Title Y II litiga
tion and the possible loss of federal contract eligibility.
131 Regents of the Univ. of Cal. v. Bakke, supra, 98 S. Ct. at
2754, and eases cited therein. See also International Bhd. of Team
sters v. United States, supra, 431 U.S. at 368-72; Califano v. Gold-
farb, 430 U.S. 199, 212-17 (1977) ; Weinberger v. Weisenfeld, 420
U.S. 636, 648-53 (1975); Chance v. Bd. of Examiners, 534 F.2d
993, 998 (2d Cir. 1976), cert, denied sub nom. Council of Super
visors v. Chance, 431 U.S. 965 (1977).
132 See, e.g., EEOC v. AT&T, supra, 556 F.2d at 174-80; United
States v. Allegheny-Ludlum Indus., Inc., supra, 517 F.2d at 850,
855, 862-64.
52
W orking from models in the Steel Industry Consent
Decree and the aluminum industry,133 the Company
and Union fashioned a remedy that would provide
training for craft jobs—a program that was expected
to accommodate no more than twenty Gramerey em
ployees at once.134
In addition, to be responsive to repeated union de
mands for more on-the-job craft training, the Com
pany agreed to make all incumbent production em
ployees eligible for the program, provided that half of
the openings be reserved for blacks in order to achieve
the initial purpose of the undertaking.
In relation to the objective, this new program is
clearly within the zone of reasonableness. I t should
overcome most of the existing underutilization, but it
will probably take at least th irty years to do so.135 That
133 Mr. Bowdle testified that the same ‘ ‘ approach ’ ’ which Kaiser
adopted in its 1974 agreement with the Steelworkers had been
adopted in the aluminum industry, the steel industry, the can
industry, and I ’m sure that if you went out and investigated,
you would find that there are industries, smaller, independent,
or otherwise, that have arrived at the same conclusions and
applied the same principles.
J.A. 94. Mr. English also acknowledged the influence of commit
ments in the steel industry and the paper industry. J.A. 83.
134 J.A. 68.
135 In 1973, there were five black craftsmen at Kaiser out of a
total craft population of 273. J.A. 167. In 1974, Kaiser admitted
13 bidders, six white and seven black, into its craft training pro
gram. J.A. 166. In 1974, Kaiser also hired at least seven craftsmen
off the street, only one of whom was black, thus raising its total
craft population to 293. J.A. 167. If we assume that from 1974
forward Kaiser trained 20 new craftsmen every three years, J.A.
68, to make up for attrition; that the craft population of 293 re
mained constant; that Kaiser added an average of seven black
trainees per year; and that no black craftsmen left its employ,
53
is certainly not an unreasonably short period of time.136
The program separately allocates an appropriate
sh a re137 of opportunities to blacks because without
it would take 30 years for the black craft population to grow
by 101 persons to a total of 114, or 39 percent of the total popula
tion of 293. The details of the calculation appear* in Exhibit A.
Moreover, if any black craftsmen leave Kaiser or if Kaiser continues
to hire craftsmen off the street, and only one out of seven, or 14
percent, of those hired is black, as was true in 1974, then it would
take longer still to reach an overall black proportion of 39 percent.
The testimony of Dennis English stated that off-the-street black
craftsmen were not available. J.A. 62-63.
136 What is a reasonable period of time will vary from case to
case, depending on the availability of opportunities resulting from
turnover and expansion, the nature of the job qualifications and
the competing equities of other employees. Some studies indicate
that it may take several decades to achieve racial parity in the job
market, even in the absence of overt discrimination. See, e.g.,
Lieberson & Fuguitt, Negro-White Occupational Differences in
the Absence of Discrimination, Ain. J. Soc., Yol. 73, No. 2 (1967).
The time required until affirmative action produces the desired
results may seem unreasonably long in some cases, but this only
emphasizes the need to encourage prompt employer action on a
voluntary basis.
The situation is similar to the story President Kennedy used to
tell about French Marshall Lyautey, who asked his gardener to
plant a tree:
The Gardener objected that the tree was slow growing and
would not reach maturity for a hundred years. The Marshall
replied, “ In that case, there is no time to lose, plant it this
afternoon.”
Address in Berkeley at the University of California, March 23,
1962, Public Papers of the Presidents, John F. Kennedy, 1962,
263, 266.
137 The area work force in Gramercy was 39 percent black. J.A.
60. An allocation of 50 percent of the training opportunities for
black and female candidates is not even disproportionate in rela
tion to availability of these groups in the local labor market. Cer
tainly, it was reasonable in light of the distance between the level
of current utilization (approximately 2 percent) and the goal, and
the trainee vacancy rate of only 4 percent of craft jobs in 1974.
J.A. 167.
54
such allocation black progress in the crafts would pro
ceed at a glacial pace.138 Absent race-specific selections,
the program would have lost its value as affirmative
action. W ith such selections, seven black employees
obtained places in the new training program which
none of them would otherwise have enjoyed.139
More could have been achieved for affirmative action
in a shorter time if white employees had been wholly
foreclosed from eligibility or afforded a smaller share
of the opportunities. But such a program would have
incensed union members who had pressed for training
opportunities for incumbents for years.140 The Com
pany and the Union were sensitive to the competing
interests of white males and sought a viable compro
mise which would nevertheless eliminate the problem
of substantial underutilization of blacks and its con
sequences. As stated by K aiser’s witness, Mr. Bowdle,
at trial, Company and Union personnel designed a
program that would, in “ our best judgments . . . least
disrupt the system and still achieve the goal, other than
trying to find rationales for not doing i t .” 141 Measured
in relationship to those objectives, the program has
been a success.
138 Much of the hiring of blacks in production jobs had occurred
since 1969. Pet. App. 23a-24a & n.3, 563 F.2d at 231 & n.3;
J.A. 60, 81-82. These relatively new employees would have little
likelihood of being selected as craft trainees for several years. J.A.
71-72, 87. Thus, even the moderate pace of change anticipated
under the Kaiser-Steelworker agreement would be slowed if not
interrupted. See note 135 supra.
139 J.A. 86-87.
140 J.A. 73, 85.
141 J.A. 103 (emphasis added).
55
2, Due Consideration Was Given To The Interests Of White
Workers
In B akke . the university, described as “ an isolated
segment” of society, was criticized for seeking to re
dress complex social inequities at the expense of cer
tain racial and ethnic groups. The benign arrogance
implicit in the university’s judgments results from
unilateral decision making in its admissions program.
Unlike the university, Kaiser did not act alone in re
solving the competing interests and obligations it
faced. The participation of the Union in the adoption
of the program provided both white and minority em
ployees with representation committed to protecting
their interests to the fullest extent feasible. The pro
cess worked well, for, like their black counterparts,
white production workers at the Gramerey plant ob
tained craft training opportunities for the first time.142
The fact that some of the white bidders want the bene
fits of the process sooner than they will be available
under the agreement does not condemn the agreement.
a. Kaiser And The Steelworkers Used Their Best Judgment
To Reconcile Competing Interests
Congress years ago designed a national labor policy,
since confirmed by the courts, around the belief that
employers and unions are in the best position to recon
cile competing interests of the employer and employ
ees.143 Though the result may be to subordinate the
142 The initial selections in 1974 included six white males who
would not otherwise have been eligible for in-plant training oppor
tunities. J.A. 51, 66.
143 See, e.g., § 1 of the National Labor Relations Act of 1935,
29 U.S.C. § 151 (1976); § 201 of the Labor Management Relations
Act of 1947, 29 U.S.C. § 171 (1976); Emporium Capwell Co. v.
56
interests of some employees to those of others, the col
lective bargaining process has been given deference
and protection as the fairest and most workable sys
tem for assuring a proper accommodation of diverse
interests.144 The union’s duty of fa ir representation
provides additional assurance that the balance of com
peting equities among the employees themselves will
not be unfairly distorted.145
This Court has held that the “ elimination of dis
crimination and its effects is an appropriate subject of
bargaining.” Emporium Cap well, supra, 420 U.S. at
69. I t has also acknowledged that judicial deference
Western Addition Community Organization, 420 U.S. 50, 62
(1975) ; Local 24, In t’l Bhd. of Teamsters v. Oliver, 358 U.S.
283, 295 (1959).
144 See, e.g., TWA v. Hardison, 432 U.S. 63, 79 (1977); Em
porium Capwell Co. v. Western Addition Community Organization,
supra, 420 U.S. at 62, 70, and cases cited therein; Humphrey v.
Moore, 375 U.S. 335, 349-50 (1964). See also Pellieer v. Bhd. of
Ry. & S.S. Clerks, 217 F.2d 205, 206 (5th Cir. 1954), cert, denied,
349 U.S. 912 (1955).
145 Emporium Capwell Co. v. Western Addition Community Or
ganization, supra, 420 U.S. at 64. But see Alexander v. Gardner-
Denver Co., 415 U.S. 36, 58 n.19 (1974). The statement in footnote
19 of Gardner-Denver that “ harmony in interest between the union
and the individual employee cannot always be presumed, especially
where a claim of racial discrimination is made . . is obviously
addressed to situations disfavoring those who are in the minority
within the union as well as within their employer’s work force.
There is far less reason, if any, for suspecting the union’s motives
when its actions favor minority group members as they allegedly
did here. In fact, the collective bargaining process has been likened
to the legislative process in this regard. Steele v. Louisville &
Nashville R.R., 323 U.S. 192, 202 (1944). Cf. United Steelworkers
of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580
(1960) and J.I. Case Co. v. NLRB, 321 U.S. 332, 335 (1944).
57
to the joint action of companies and unions in m atters
that are proper subjects of collective bargaining is
generally the appropriate judicial role.146 Other im
portant federal policies and even individual rights
may be lawfully subordinated to the process and re
sults of collective bargaining.147
An employee’s Title Y II rights may not be violated
or waived through the collective bargaining process, of
course. T W A v. Hardison, 432 U.S. 63, 79 (1977);
Alexander v. Gardner-Denver Co., 415 U.S, 36, 51
(1974). Certainly, the proposed standard of reason
ableness would not preclude white members of the
union from asserting their Title Y II rights in this
litigation any more so than in a Labor Management
Relations Act context. In determining whether those
rights have been violated, however, some deference is
due the collectively bargained agreement whereby the
Company and Union reached an accommodation of the
Title Y II rights and obligations of all the parties and
their constituents.
146 See, e.g., Emporium Capwell Co. v. Western Addition Com
munity Organization, supra, 420 U.S. at 62, 70; Huffman, supra,
345 U.S. at 339-43; Local 24, In t’l Bhd. of Teamsters v. Oliver,
358 U.S. 283, 295-97 (1959).
147 See, e.g., Local 189, Amalgamated Meat Cutters v. Jewel Tea
Co., 381 U.S. 676, 691, 710 (1965) (agreement limiting working
hours does not violate antitrust laws) ; Abood v. Detroit Bd. of
Educ., 431 U.S. 209, 226-27 (1977) (Stewart, J.) (upholding
agency shop despite impact on employees’ First Amendment
rights). Cf. Connell Constr. Co. v. Plumbers Local 100, 421 U.S.
616, 622 (1975), where Mr. Justice Powell spoke of the need to
reach a “ proper accommodation” of national goals favoring com
petition and collective bargaining.
58
The Company and the Union have the strongest
reasons and responsibilities 148 * * * to resolve the competing
interests involved in this case in an equitable manner,
To approve judicial nullification of that process in the
context of this case would be contrary to national labor
policy and, as demonstrated above, devastating to the
interests of black workers and to the nation’s goal of
equal employment opportunity.
b. The Program Did No! Abrogate The Bights Or Expecta
tions Oi Incumbents
Two facts about the impact of the 1974 training pro
gram on incumbent white production workers are
clear: When the Company and Union adopted the
training program in 1974, (1) they neither lost nor
compromised any preexisting rights or expectations;
and (2) for the first time, they gained an opportunity
to qualify as craft workers. Before the adoption of the
program, the only avenue to craft jobs for such em
ployees would have required them to leave the Gram-
ercy plant and to acquire experience elsewhere. The
Respondent on their behalf now complains that their
chance to acquire experience on the job will not come
soon enough.
The legitimate expectations of employees arising out
of seniority rights established under a collective bar
148 The union’s duty of fair representation is owed to both black
and white members. To meet this statutory responsibility a union
is obligated to seek the most equitable accommodation of the some
times competing interests of the two groups. Cf. Franks v. Bowman
Transp. Co., 424 U.S. 747, 793 n.13 (Powell & Rehnquist, JJ., con
curring in part) ; Ford Motor Co. v. Huffman, supra, 345 U.S. at
337-39. Certainly, there is no reason to expect that it will be unfair
to those who are the majority of its membership. See note 145 supra.
59
gaining agreement have been shown particular solici
tude by the courts.149 Although even these expectations
may be deferred or put aside for lawful purposes,150
some courts which have upheld hiring “ quotas” have
struck down promotion “ quotas” in deference to se
niority or other interests.161 W hether or not such an
analysis is correct under Title V II ,:152 it treats the in
cumbent employee differently than the applicant at
the gate. Unlike the incumbent, the new job applicant
has merely a hope, not an expectation of employment.
While court-approved hiring quotas have often re
served a portion of new vacancies for nonminority
candidates to avoid total foreclosure of opportunities
for white males, this has generally been done in the
exercise of the equitable powers of the court, not out
149 See, e.g., TWA v. Hardison, 432 U.S. 63, 79-85 (1977); Inter
national Bhd. of Teamsters v. United States, 431 U.S. 324, 343-57,
372-76 (1977) ; Franks v. Bowman Transp. Co., supra, 424 U.S. at
766-67; EEOC v. AT&T, 556 F.2d 167, 177 (3d Cir. 1977), cert,
denied sub nom. Communications Workers of America v. EEOC,
98 S. Ct. 3145 (1978).
150 See, e.g., International Bhd. of Teamsters v. United States,
supra, 431 U.S. at 372-76; Franks v. Bowman Transp. Co., supra,
778, and cases cited therein; EEOC v. AT&T, supra at 177 & n.6,
cert, denied sub nom. Communications Workers of America v.
EEOC, 98 S. Ct. 3145 (1978), and cases cited therein.
151 See, e.g., Kirkland v. New York State Dept, of Correctional
Servs., 520 F.2d 420, 429-30 (2d Cir. 1975), cert, denied, 429 U.S.
823 (1976); Bridgeport Guardians, Inc. v. Bridgeport Civil Serv.
Comm’n, 482 F.2d 1333, 1340-41 (2d Cir. 1973), cert, denied, 421
U.S. 991 (1975). See also White v. Carolina Paperboard Corp., 564
F.2d 1073, 1091-92 (4th Cir. 1977); Detroit Police Officers Ass’n
v. Young, 446 F. Supp. 979, 1010-12 (E.D. Mich. 1978). 152
152 See EEOC v. AT&T, supra, 556 F.2d at 177, cert, denied sub
nom. Communications Workers of America v. EEOC, 98 S. Ct. 3145
(1978).
60
of deference to any individual’s expectations of a
job.163
The legitimate expectations of Kaiser production
workers of securing craft jobs at the Gramercy plant
could have been no greater than those of an inex
perienced applicant at the gate. They had nothing
more to lose from the adoption of the new training
program in 1974 than they did from the implementation
of the one-to-one black-white hiring quota at Gramercy
in 1969. On the contrary, they stood only to gain.
C. Summary
Under the circumstances in this case, Kaiser and the
Union acted well within the zone of reasonableness of
affirmative action in adopting the challenged training
program. Perhaps no one of the factors described above
is indispensable, nor is any one sufficient to justify race
conscious action by employers and unions. B ut under
the conditions that existed at the Gramercy facility in
1974, in light of the law as it is and was understood,
the Company and Union did not give black employees
too much too soon. 153
153 See, e.g., United States v. City of Chicago, 549 F.2d 415, 437
(7th Cir.), cert, denied sub nom. Arado v. United States, 434 U.S.
875 (1977) ; United States v. Elevator Constructors Local 5, 538
F.2d 1012, 1017-18 (3d Cir. 1976) ; Crockett v. Green, 534 F.2d
715, 718 (7th Cir. 1976); NAA'OP v. Allen, 493 F.2d 614, 617,
621 (5th Cir. 1974) ; Erie Human Relations Comm’n v. Tullio,
493 F.2d 371, 374-75 (3d Cir. 1974); Vulcan Soc’y v. Civil Serv.
Comm’n, 490 F.2d 387, 398-99 (2d Cir. 1973).
61
CONCLUSION
In his opinion in the Bakke ease, Mr. Justice Black-
mun wrote:
I yield to no one in my earnest hope that the time
will come when an “ affirmative action” program is
unnecessary and is, in truth, only a relic of the
past. I would hope that we could reach this stage
within a decade at the most. But the story of
Brown v. Board of Education, 347 U.S. 483 (1954),
decided almost a quarter of a century ago, sug
gests that that hope is a slim one. At some time,
however, beyond any period of what some would
claim is only transitional inequality, the United
States must and will reach a stage of m aturity
where [race conscious] action . . . is no longer
necessary. Then persons will be regarded as per
sons, and discrimination of the type we address
today will be an ugly feature of history that is
instructive but that is behind us.
98 S. Ct. at 2806.
These observations could well have been made in a
Title Y II case for they reflect the fact that race con
scious means must often now be used to achieve the
ultimate goal of a work place that is free of discrimina
tion. Although care should be taken in adopting or
approving a race conscious remedy, employers and
unions should not be disabled from taking such action
voluntarily. Where, as here, the action was taken under
compelling circumstances and safeguarded, indeed pro
moted, the interests of nonminorities to the fullest
extent feasible, it should be upheld with confidence
6 2
that it is a “ blend of what is necessary, what is fair,
and what is workable.” 154
Respectfully submitted,
T h o m p so n P ow ers
J a n e M cG-r ew
S tepto e & J o h n s o n
1250 Connecticut Avenue, K.W.
Washington, D.C. 20036
(202) 862-2000
Attorneys for Kaiser Aluminum &
Chemical Corporation
Of Counsel:
R obert J . A l l e n , J r .
K a iser A l u m in u m & C h e m ic a l
Corporation
300 Lakeside Drive
Oakland, California 94643
154 Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (Burger, C.J.)
(footnote omitted).
EXHI BI T
le
E X H IB IT A
Year
New
Craft
Trainees1
New Black
Craft
Trainees2
Total
Black
Craftsmen 3
1974 13 7 13
1975 0 0 13
1976 7 3 16
1977 8 4 20
1978 5 3 23
1979 7 3 26
1980 8 4 30
1981 5 3 33
1982 7 3 36
1983 8 4 40
1984 5 3 43
1985 7 3 46
1986 8 4 50
1987 5 3 53
1988 7 3 56
1989 8 4 60
1990 5 3 63
1991 7 3 66
1992 8 4 70
1993 5 3 73
1994 7 3 76
1995 8 4 80
1 Based on the maximum estimate of 20 trainees in a three-year
period. J.A. 68. The Exhibit also assumes that Kaiser would only
select eight trainees in 1977 to replace its graduating group of 13.
Such a procedure would permit Kaiser to select five more trainees
in 1978 to fill the three-year class to 20, and thus assure a system
whereby some trainees might be chosen every year.
2 Chosen on a 50-50 black-white ratio. If an uneven number of
trainees enter the program in a given year, an extra black is selected
one year and an extra white is; selected on the next uneven year.
3 Including six black journeymen as of 1974-1975. J.A. 71.
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
83
86
90
93
96
100
103
106
110
113
116-a
o
io
o
-^
o
tQ
o
-q
o
io
o
-o
d
E X H IB IT A Continued
2e
3
3
4
3
3
4
3
3
4
3
3
C m M .